Oregon Statute | Act | Code |Title 30 Education And Culture| US Code - US Statute

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](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]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](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](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] 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]SPECIAL EDUCATION PROCEDURES(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](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]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]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](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](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](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](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](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](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](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]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](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](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]ADMINISTRATION OF SPECIAL EDUCATIONIn 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.

(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.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](1) The Superintendent of Public Instruction may provide
special education on a local, county or regional basis without regard to
county boundaries in all areas of the state for children who have:

(a) A visual impairment;

(b) A hearing impairment;

(c) Blindness or deafness, or both;

(d) An orthopedic impairment;

(e) Autism; or

(f) Traumatic brain injury.

(2) The Superintendent of Public Instruction may operate and
administer a local, county or regional program of special education or
the superintendent may contract for the operation and administration of
the program with a school district or an education service district.

(3) The State Board of Education by rule shall establish
eligibility criteria and educational standards for the programs described
in subsection (1) of this section and those programs in facilities
operated under ORS 346.010.

(4) A school district which contracts to provide a program under
this section shall be paid for the state-approved program as determined
and funded by the Legislative Assembly. Contracting school districts are
authorized to negotiate supplemental programs with participating school
districts. [1965 c.100 §401; 1975 c.621 §7; 1985 c.555 §2; 1991 c.167
§24; 1991 c.795 §14; 1993 c.749 §16; 2003 c.226 §18; 2005 c.306 §1]Note: The amendments to 343.236 by section 1, chapter 306, Oregon
Laws 2005, first apply to the 2006-2007 school year. See section 2,
chapter 306, Oregon Laws 2005. The text that applies prior to the
2006-2007 school year is set forth for the user’s convenience.

(1) The Department of Education shall
bill annually each resident school district for children who are
residents of the school district and are served under ORS 343.236 or
enrolled in a program under ORS 346.010.

(2) A billing under this section shall be in an amount equal to
(the amount of federal funds received by the school district through the
Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq.,
divided by the number of eligible children under the Individuals with
Disabilities Education Act who are reported by the school district as
receiving special education services on the December 1 special education
census) multiplied by the number of children who are eligible under the
Individuals with Disabilities Education Act and served under ORS 343.236
or enrolled in a program under ORS 346.010.

(3) The department shall notify each resident school district of
the estimated amount of the billing no later than March 30 after the
December 1 census.

(4) The department shall bill each resident school district no
later than the November 1 following the March 30 notification under
subsection (3) of this section. The resident school district shall pay
the amount of the billing out of the school district’s Individuals with
Disabilities Education Act grant award no later than January 1 following
the November 1 billing. In lieu of payment, a school district may request
that the department withhold the billing amount from any unclaimed
federal grant funds that are payable to the school district.

(5) The department shall distribute the moneys made available from
billings under this section to each program providing services to
children under ORS 343.236 or to the program in which children are
enrolled under ORS 346.010. [2001 c.64 §1]Note: 343.239 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 343 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation.(1) The Department of Education shall
recover from the State School Fund an amount for each child who is
enrolled in a special education program under ORS 343.261, 343.961 and
346.010.

(2) The amount recovered shall be equal to (a) the average net
operating expenditure per student of all school districts during the
preceding school year multiplied by (b) the resident average daily
membership of students enrolled in the special education program one-half
of the school day or more, exclusive of preschool children covered by ORS
343.533.

(3) The children covered by this section shall be enumerated in the
average daily membership of the district providing the instruction but
credit for days’ attendance of such children shall not accrue to such
school district for the purpose of distributing state school funds.

(4) The liability of a district shall not exceed the amount
established under this section even if the child is otherwise subject to
ORS 336.575 and 336.580.

(5) The amounts recovered from the State School Fund shall be
credited to the appropriate subaccount in the Special Education Account.
[1985 c.555 §7; 1987 c.282 §1; 1989 c.875 §1; 1989 c.971 §5; 1991 c.167
§25; 1991 c.780 §37; 1999 c.684 §1; 2001 c.36 §1; 2001 c.900 §243] (1) There is established in the
General Fund a separate account to be known as the Special Education
Account. All moneys received by the Department of Education under this
section shall be deposited in the State Treasury to the credit of the
account and appropriated continuously for purposes of ORS 343.261,
343.961 and 346.010. The account shall be divided into two subaccounts:

(a) A subaccount for education under ORS 343.261 and 343.961.

(b) A subaccount for education under ORS 346.010.

(2) If the amount credited under subsection (1)(a) of this section
and the General Fund appropriation for these programs are not adequate to
meet costs, the Department of Education shall submit a revised budget to
the Legislative Assembly or, if the Legislative Assembly is not in
session, the Emergency Board. [1985 c.555 §8; 1993 c.45 §215] Under
rules adopted by the State Board of Education:

(1) The Superintendent of Public Instruction, in cooperation with
the hospital authorities, shall be responsible for payment of the cost
and oversight of the educational programs for children through 21 years
of age in the following institutions:

(a) State-operated hospitals;

(b) The Oregon Health and Science University hospitals and clinics;
and

(c) Private hospitals not including psychiatric facilities which:

(A) Have the capacity to admit patients from throughout the state;

(B) Provide specialized intensive treatment for children with
severe, low-incidence types of disabling conditions; and

(C) Admit children who can expect to be hospitalized for extended
periods of time or rehospitalized frequently.

(2) The superintendent shall be responsible for the payment of the
cost of the education by contract with the school district in which the
state-operated hospital, the Oregon Health and Science University
hospital or clinic or the private hospital is located. The hospital shall
be responsible for the costs of transportation, care, treatment and
medical expenses. The payments may be made to the school district, or at
the discretion of the school district, to the district providing the
education, as set forth in subsection (3) of this section, from the funds
appropriated for the purpose.

(3) The school district in which the state-operated hospital, the
Oregon Health and Science University hospital or clinic or the private
hospital is located shall be responsible for providing the education
directly or through an adjacent school district or through the education
service district in which the program is located or one contiguous
thereto.

(4) The superintendent shall make the final determinations
concerning the eligibility of hospitals to receive state funding under
this section. [1959 c.510 §10 (343.211 to 343.291 and 343.990(2) enacted
in lieu of 343.234 to 343.304 as compiled in 1957 Replacement Part); 1965
c.100 §402; 1975 c.621 §8; 1975 c.693 §2; 1979 c.737 §1; 1985 c.555 §3;
1989 c.224 §54; 1989 c.491 §39; 1989 c.875 §2; 1995 c.162 §69] Where federal
funds are made available on a matching basis for special education, state
funds available for special education may be used to match the federal
funds. [1959 c.710 §§16, 17, 20 (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.570 §18; 1965 c.100 §407; 1969 c.519 §2; 1975 c.621 §11](1) There is created a State Advisory Council for
Special Education, consisting of members appointed by the Superintendent
of Public Instruction. Members shall be representative of the geographic
areas of this state.

(2) Members must include:

(a) Individuals with disabilities;

(b) Parents or guardians of children with disabilities ages birth
through 26;

(c) Teachers;

(d) State and local education officials, including officials who
carry out activities under part B of subchapter VI of the McKinney-Vento
Homeless Assistance Act, 42 U.S.C. 11431 et. seq.;

(e) Administrators of programs for children with disabilities;

(f) Representatives of institutions of higher education that
prepare personnel to work in special education and related services;

(g) Representatives of other state agencies involved in the
financing or delivery of related services;

(h) Representatives of private schools and representatives of
public charter schools as defined in ORS 338.005;

(i) At least one representative of a vocational, community or
business organization concerned with the provision of transition services
to children with disabilities;

(j) A representative from the Department of Human Services
responsible for foster care;

(k) Representatives from the Oregon Youth Authority and Department
of Corrections; and

(L) Other persons associated with or interested in the education of
children with disabilities.

(3) A majority of the members shall be individuals with
disabilities or parents of children with disabilities ages birth through
26.

(4) The State Advisory Council for Special Education shall:

(a) Review aspects of the statewide program of education of
children with disabilities and advise the Superintendent of Public
Instruction and the Department of Education on such programs;

(b) Advise the Superintendent of Public Instruction and the
Department of Education of unmet needs in the education of children with
disabilities;

(c) Comment publicly on any rules proposed for adoption by the
Department of Education concerning special education;

(d) Assist the state in developing and reporting data and
evaluations concerning special education;

(e) Advise the Department of Education in developing corrective
action plans to address findings identified in federal monitoring reports
on special education; and

(f) Advise the Department of Education in developing and
implementing policies relating to the coordination of services for
children with disabilities.

(5) Out of the funds appropriated to the Department of Education,
the department shall reimburse members for necessary travel and other
expenses under ORS 292.495 (2). [Formerly 343.530; 1977 c.30 §1; 1989
c.158 §2; 1989 c.491 §40; 1993 c.45 §220; 1999 c.989 §23; 2001 c.104
§118; 2005 c.662 §9] (1)
Every school district, combination of districts or education service
district that operates or plans to operate a program of special education
under ORS 343.035 and 343.221 may appoint one or more local advisory
councils consisting primarily of parents of children being served in
special education programs.

(2) Each advisory council shall select its own chairperson and vice
chairperson and fix the duties of its officers.

(3) Each local advisory council shall review all aspects of the
special program and report to the district school board, or boards or to
the education service district board. The local council shall also make
recommendations to the Superintendent of Public Instruction as to
appointments to the State Advisory Council for Special Education.
[Formerly 343.525; 1989 c.158 §3] The school district may
award to children with disabilities a document certifying successful
completion of program requirements. No document issued to children with
disabilities educated in full or in part in a special education program
shall indicate that the document is issued by such a program. [1975 c.621
§3; 1993 c.45 §221]TALENTED AND GIFTED CHILDREN The purpose of ORS
343.391 to 343.413 is to facilitate the identification and education of
talented and gifted children. [1959 c.528 §1; 1963 c.570 §21; 1971 c.613
§1; 1979 c.385 §1] As used in ORS
343.391 to 343.413, unless the context requires otherwise:

(1) “Application” means a request by a school district for state
funds to develop and operate programs for students under an approved,
written plan as contained in ORS 343.397.

(2) “Board” means the State Board of Education.

(3) “Department” means the Department of Education.

(4) “Identification” means the formal process of screening and
selecting talented and gifted children according to administrative rules
established by the board.

(5) “School district” has the same meaning as in ORS 330.005 (2)
and also includes, where appropriate, an education service district,
state operated schools or programs or a consortium of school districts
submitting a joint plan.

(6) “Superintendent” means the Superintendent of Public Instruction.

(7) “Talented and gifted children” means those children who require
special educational programs or services, or both, beyond those normally
provided by the regular school program in order to realize their
contribution to self and society and who demonstrate outstanding ability
or potential in one or more of the following areas:

(a) General intellectual ability as commonly measured by measures
of intelligence and aptitude.

(b) Unusual academic ability in one or more academic areas.

(c) Creative ability in using original or nontraditional methods in
thinking and producing.

(d) Leadership ability in motivating the performance of others
either in educational or noneducational settings.

(e) Ability in the visual or performing arts, such as dance, music
or art. [1959 c.528 §2; 1963 c.570 §22; 1965 c.100 §409; 1971 c.613 §2;
1979 c.385 §2; 1987 c.335 §1] It is legislative policy that, when
talented and gifted programs are offered, the programs should be provided
by common or union high school districts, combinations of such districts
or education service districts, in accordance with ORS 334.175, and that
the state will provide financial and technical support to the districts
to implement the education programs within the limits of available funds.
[1979 c.385 §8; 1981 c.833 §2]Note: 343.396 was enacted into law by the Legislative Assembly but
was not added to or made a part of ORS chapter 343 or any series therein
by legislative action. See Preface to Oregon Revised Statutes for further
explanation. Any
school district may submit to the Superintendent of Public Instruction
for approval a written plan of instruction for talented and gifted
children. The plan shall include, but not be limited to:

(1) A statement of school district policy on the education of
talented and gifted children;

(2) An assessment of current special programs and services provided
by the district for talented and gifted children;

(3) A statement of district goals for providing comprehensive
special programs and services and over what span of time the goals will
be achieved;

(4) A description of the nature of the special programs and
services which will be provided to accomplish the goals; and

(5) A plan for evaluating progress on the district plan including
each component program and service. [1959 c.528 §§5, 6, 7; 1963 c.570
§23; 1965 c.100 §410; 1971 c.613 §3; 1979 c.385 §3] (1) Any school
district may apply for state funds for special programs and services for
talented and gifted children identified in the district.

(2) The Superintendent of Public Instruction shall annually
establish a date after which no further applications shall be received
for state funds under this section.

(3) The superintendent shall select applications from among those
that comply with ORS 343.391 to 343.413 and rules adopted by the State
Board of Education. Any criteria used by the superintendent to evaluate
applications shall include, but not be limited to:

(a) A statement of the school district’s present level of special
educational programs and services for the talented and gifted and how the
special educational programs and services contained in the application
conform with the school district’s written plan.

(b) Identification procedures that comply with rules adopted by the
board.

(c) A detailed budget for the program expenditures.

(d) A description of the individual student assessment and
evaluative procedures and tools.

(e) A justification of special educational services and programs
for identified talented and gifted students in terms of the student
assessment and evaluation.

(f) An evaluation design which meets standards set forth by the
Department of Education. [1959 c.528 §8; 1963 c.570 §24; 1965 c.100 §411;
1971 c.613 §4; 1979 c.385 §4] (1)
The funds specifically appropriated for the program under ORS 343.391 to
343.413 shall be distributed to districts that have approved, written
plans and have submitted an application to the Superintendent of Public
Instruction which has been approved.

(2) State funds shall be allocated on an approved program cost
basis, the amount of which shall be established by the State Board of
Education annually.

(3) No application shall be approved by the superintendent unless
the district agrees to expend district funds for special educational
programs for talented and gifted children in an amount equal or greater
than the amount of state funds approved by the superintendent.

(4) The districts shall account for the grant funds as expended for
the identified pupils on a form acceptable to the Department of
Education, as described in rules adopted by the board. [1959 c.528 §9;
1963 c.570 §24a; 1965 c.100 §412; 1971 c.613 §5; 1979 c.385 §5] (1) The Superintendent of
Public Instruction may annually expend funds appropriated for the
talented and gifted program to provide support for the development of
talented and gifted education statewide.

(2) These services may include:

(a) Teacher training programs and workshops;

(b) Consultant and technical assistance to districts;

(c) Small grants to and contracts with school districts, education
service districts, colleges and universities and private contractors to
produce and disseminate curriculum and instruction materials to other
school districts; and

(d) Training and assistance for parents of the talented and gifted
children in meeting the educational needs of their children.

(3) The amount of funds that may be expended for purposes described
in this section shall not exceed 10 percent of the amount appropriated in
a biennium for purposes of ORS 343.391 to 343.413. [1971 c.613 §6; 1979
c.385 §6; 1981 c.833 §1; 1987 c.335 §2] School
districts shall identify talented and gifted students enrolled in public
schools under rules adopted by the State Board of Education. [1987 c.337
§3; 1993 c.45 §225] School districts
shall provide educational programs or services to talented and gifted
students enrolled in public schools under rules adopted by the State
Board of Education. [1987 c.337 §4; 1993 c.45 §226; 1993 c.749 §18](1) ORS 343.407 and 343.409 shall
apply to the identification of and provision of special educational
programs and services for the talented and gifted as described in ORS
343.395 (7)(a) and (b) and rules adopted by the State Board of Education.

(2) School districts may identify and provide special educational
programs and services for students who demonstrate creative abilities,
leadership abilities or unusual abilities in the visual or performing
arts as described in ORS 343.395 (7)(c), (d) and (e) and rules adopted by
the board.

(3) The board shall adopt state guidelines for the identification
and provision of special educational programs and services described in
subsection (2) of this section. [1991 c.951 §2]ORS 343.407 to 343.413 shall be known as the
Oregon Talented and Gifted Education Act. [1987 c.337 §2]SERVICES TO PRESCHOOL CHILDREN WITH DISABILITIES(1) Oregon prekindergartens, as
defined in ORS 329.170, shall be responsible for providing early
childhood special education as defined in ORS 343.035 (5).

(2) Not less than 10 percent of the population of children served
in Oregon prekindergartens shall be children who are eligible to receive
early childhood special education. [1991 c.785 §4; 1993 c.45 §231; 2001
c.831 §25](1) It is the policy of this state to
respect the unique nature of each child, family and community with
particular attention to cultural and linguistic diversity, and to support
a system of services for preschool children with disabilities and their
families that:

(a) Recognizes the importance of the child’s family, supports and
builds on each family’s strengths and respects family decision-making and
input regarding service options and public policy.

(b) Identifies, evaluates and refers services for preschool
children with disabilities at the earliest possible time.

(c) Uses specialized services and all other community services and
programs for children, including community preschools, Head Start
programs, community health clinics, family support programs and other
child-oriented agencies.

(d) Uses a variety of funding sources for preschool children with
disabilities and their families, including public and private funding,
insurance and family resources.

(e) Assists families in utilizing necessary services in the most
cost-effective and efficient manner possible by using a coordinated
planning and implementation process.

(f) Insures that all children and their families, regardless of
disability, risk factors or cultural or linguistic differences, are able
to utilize services for which they would otherwise be qualified.

(g) Encourages services and supports for preschool children with
disabilities and their families in their home communities and in settings
with children without disabilities.

(h) Recognizes the importance of developing and supporting
well-trained and competent personnel to provide services to preschool
children with disabilities, and their families.

(i) Evaluates the system’s impact on the child and family,
including child progress, service quality, family satisfaction,
transition into public schooling, longitudinal and cumulative reporting
over several biennia and interagency coordination at both the state and
local level.

(j) Reports information described in paragraph (i) of this
subsection to the State Interagency Coordinating Council, the Governor,
the Superintendent of Public Instruction, the State Board of Education
and the Legislative Assembly each biennium.

(2) In carrying out the provisions of subsection (1) of this
section, the Department of Education, the Department of Human Services
and the Department of Higher Education shall coordinate services to
preschool children with disabilities, or who are at risk of developing
disabling conditions, and their families. All program planning, standards
for service, policies regarding services delivery and budget development
for services for preschool children with disabilities, and their families
shall reflect the policy outlined in subsection (1) of this section and
elaborated through rules and agreements. [1991 c.749 §7; 1995 c.79 §187]Note: Section 8, chapter 409, Oregon Laws 1993, provides:

Sec. 8. Effect of unavailability of federal funds on programs for
preschool children. If federal funds are not available for programs for
preschool children with disabilities for children from birth to three
years of age, the program shall be continued with state funding at least
at the current level but the additional requirements imposed on the
program by this Act shall not be required and school districts shall not
be required to comply with the additional requirements. [1993 c.409 §8](1) In accordance with
rules adopted by the State Board of Education, the Superintendent of
Public Instruction shall develop and administer a statewide,
comprehensive, coordinated, multidisciplinary, interagency program of
early childhood special education and early intervention services for
preschool children with disabilities and may:

(a) Establish and designate service areas throughout the state for
the delivery of early childhood special education and early intervention
services that shall meet state and federal guidelines and be delivered to
all eligible children.

(b) Designate in each service area a primary contractor that shall
be responsible for the administration and coordination of early childhood
special education and early intervention services to all eligible
preschool children and their families residing in the service area.

(2) Early childhood special education and early intervention
services shall:

(a) Participate in the planning process under ORS 417.777 to
develop a voluntary local early childhood system plan; and

(b) Coordinate services with other services that are coordinated
through the plan. The coordination of services shall be consistent with
federal and state law.

(3) Preschool children with disabilities shall be considered
residents of the service area where the children are currently living,
including children living in public or private residential programs,
hospitals and similar facilities.

(4) In addition to any other remedy or sanction that may be
available, the Superintendent of Public Instruction may withhold funds
and terminate the contract of any contractor that fails to comply with
any provisions of the contract. [1991 c.749 §8; 1993 c.45 §232; 2001
c.831 §26] The State
Board of Education shall adopt by rule procedures to insure that the
Department of Education and early childhood special education and early
intervention contractors maintain as confidential all records relating to
preschool children with disabilities, but only to the extent required by
federal law. The department and the contractor shall not disclose the
records except as provided by rule. [1991 c.749 §9](1) If no contractor is designated
for a service area, and no qualified county agency is available to manage
the necessary services or to subcontract the services, the Department of
Education may provide early childhood special education and early
intervention services in a local, county or service area.

(2) Contractors designated under this section shall:

(a) Participate in the planning process under ORS 417.777 to
develop a voluntary local early childhood system plan; and

(b) Coordinate services with other services that are coordinated
through the plan. The coordination of services shall be consistent with
federal and state law.

(3) Programs operated by the Department of Education must comply
with rules adopted by the State Board of Education for early childhood
special education and early intervention contractors. [1991 c.749 §10;
1993 c.45 §233; 2001 c.831 §27](1)(a) There is created the State Interagency
Coordinating Council.

(b) The Governor shall appoint members of the council from a list
of eligible appointees provided by the council and agencies described in
subsection (2) of this section and shall ensure that the membership of
the council reasonably represents the population of this state.

(c) The Governor shall designate one member of the council to serve
as the chairperson, or if the Governor chooses not to name a chairperson,
the council may elect one of its members to serve as chairperson.
However, any member of the council who represents the Department of
Education may not serve as the chairperson of the council.

(2) The membership of the council shall be composed as follows:

(a) At least 20 percent of the council members shall be parents,
including minority parents, of preschool children with disabilities or of
children with disabilities who are 12 years of age or younger who have
knowledge of or experience with programs for infants and toddlers with
disabilities. At least one council member shall be a parent of an infant
or toddler with a disability or of a child with a disability who is six
years of age or younger.

(b) At least 20 percent of the council members shall be public or
private providers of early intervention and early childhood special
education services.

(c) At least one council member shall be a member of the
Legislative Assembly.

(d) At least one council member shall be involved in personnel
preparation.

(e) At least one council member shall represent the Department of
Human Services.

(f) At least one council member shall represent the federal Head
Start program.

(g) At least one council member shall represent the Child Care
Division of the Employment Department.

(h) At least one council member shall represent the Department of
Education.

(i) At least one council member shall represent the Department of
Consumer and Business Services.

(j) At least one council member shall represent the State
Commission on Children and Families.

(k) At least one council member shall represent the Child
Development and Rehabilitation Center of the Oregon Health and Science
University.

(L) At least one council member shall be a member of the State
Advisory Council for Special Education created under ORS 343.287.

(m) At least one council member shall be a representative
designated by the state coordinator for homeless education.

(n) At least one council member shall represent the state child
welfare agency responsible for foster care.

(o) At least one council member shall represent the state agency
responsible for children’s mental health.

(p) At least one council member shall be from the agency
responsible for the state Medicaid program.

(q) The council may include other members appointed by the
Governor, including but not limited to one representative from the United
States Bureau of Indian Affairs or, where there is no school operated or
funded by the bureau, from the Indian Health Service or the tribe or
tribal council.

(3) An individual appointed to represent a state agency that is
involved in the provision of or payment for services for preschool
children with disabilities under subsection (2)(e) and (h) to (k) of this
section shall have sufficient authority to engage in making and
implementing policy on behalf of the agency.

(4) The State Interagency Coordinating Council shall:

(a) Advise the Superintendent of Public Instruction and the State
Board of Education on unmet needs in the early childhood special
education and early intervention programs for preschool children with
disabilities, review and comment publicly on any rules proposed by the
State Board of Education and the distribution of funds for the programs
and assist the state in developing and reporting data on and evaluations
of the programs and services.

(b) Advise and assist the represented public agencies regarding the
services and programs they provide to preschool children with
disabilities and their families, including public comments on any
proposed rules affecting the target population and the distribution of
funds for such services, and assist each agency in developing services
that reflect the overall goals for the target population as adopted by
the council.

(c) Advise and assist the Department of Education and other state
agencies in the development and implementation of the policies that
constitute the statewide system.

(d) Assist all appropriate public agencies in achieving the full
participation, coordination and cooperation for implementation of a
statewide system that includes but is not limited to:

(A) Seeking information from service providers, service
coordinators, parents and others about any federal, state or local
policies that impede timely service delivery; and

(B) Taking steps to ensure that any policy problems identified
under subparagraph (A) of this paragraph are resolved.

(e) Advise and assist the Department of Education in identifying
the sources of fiscal and other support for preschool services, assigning
financial responsibility to the appropriate agencies and ensuring that
the provisions of interagency agreements under ORS 343.511 are carried
out.

(f) Review and comment on each agency’s services and policies
regarding services for preschool children with disabilities, or preschool
children who are at risk of developing disabling conditions, and their
families to the maximum extent possible to assure cost-effective and
efficient use of resources.

(g) To the extent appropriate, assist the Department of Education
in the resolution of disputes.

(h) Advise and assist the Department of Education in the
preparation of applications and amendments thereto.

(i) Advise and assist the Department of Education regarding the
transition of preschool children with disabilities.

(j) Prepare and submit an annual report to the Governor and to the
United States Secretary of Education on the status of early intervention
programs operated within this state.

(5) The council may advise appropriate agencies about integration
of services for preschool children with disabilities and at-risk
preschool children.

(6) Terms of office for council members shall be three years,
except that:

(a) The representative from the State Advisory Council for Special
Education shall serve a one-year term; and

(b) The representatives from other state agencies and the
representative from the Legislative Assembly shall serve indefinite terms.

(7) Subject to approval by the Governor, the council may use
federal funds appropriated for this purpose and available to the council
to:

(a) Conduct hearings and forums;

(b) Reimburse nonagency council members pursuant to ORS 292.495 for
attending council meetings, for performing council duties, and for
necessary expenses, including child care for parent members;

(c) Pay compensation to a council member if the member is not
employed or if the member must forfeit wages from other employment when
performing official council business;

(d) Hire staff; and

(e) Obtain the services of such professional, technical and
clerical personnel as may be necessary to carry out its functions.

(8) Except as provided in subsection (7) of this section, council
members shall serve without compensation.

(9) The Department of Education shall provide clerical and
administrative support, including staff, to the council to carry out the
performance of the council’s function as described in this section.

(10) The council shall meet at least quarterly. The meetings shall
be announced publicly and, to the extent appropriate, be open and
accessible to the general public.

(11) No member of the council shall cast a vote on any matter that
would provide direct financial benefit to that member or otherwise give
the appearance of a conflict of interest under state law. [1993 c.409 §5
(enacted in lieu of 343.498); 1999 c.989 §24; 2001 c.900 §54; 2005 c.662
§10](1) Each contractor for early childhood special
education and early intervention services shall assist in the development
of a local early intervention interagency advisory council in every
county within the contractor’s service area.

(2) Each local early intervention interagency advisory council
shall include as members at least 20 percent parents of preschool
children with disabilities, 20 percent providers of early childhood
special education and early intervention services or other services to
preschool children with disabilities, a representative of the State
Commission on Children and Families and representatives from public and
private agencies that serve young children and their families, including
but not limited to Head Start and Oregon prekindergartens, community
child care, the Child Care Division of the Employment Department, local
school districts, education service districts, Department of Education
regional special education programs, community mental health and
developmental disabilities programs, Department of Human Services health
programs, child welfare programs and public assistance programs, Indian
education agencies, migrant programs serving young children and community
colleges.

(3) Each local early intervention interagency advisory council
shall select its own chairperson and vice chairperson and fix the duties
of its officers.

(4) The department shall establish procedures pursuant to rules of
the State Board of Education for seeking and considering local council
advice regarding the selection of contractors, coordination of services
and procedures for local resolution of disputes. [1991 c.749 §13; 1993
c.45 §235; 1995 c.278 §42; 1999 c.989 §25; 2001 c.900 §55] (1)
The Department of Education shall enter into written interagency
agreements with state or federal agencies contracting for, or providing
services to, preschool children with disabilities or who are at risk of
developing disabling conditions, and their families.

(2) Each interagency agreement shall include:

(a) Components necessary to insure effective cooperation and
coordination among the agencies involved in providing services to
preschool children with disabilities.

(b) A clear description of financial responsibility of the agencies
for paying for early childhood special education and early intervention
services, case management services and other services to preschool
children with disabilities and their families.

(c) Procedures for resolving, in a timely manner, interagency
disputes regarding services, eligibility or financial responsibility
related to eligible children.

(d) A description of each agency’s procedure for resolving internal
disputes regarding the agency’s services, eligibility determination or
financial responsibility.

(e) A process for the Department of Education to follow to achieve
resolution of disputes within the agency entering into the agreement with
the department, if the given agency is unable to resolve its own internal
disputes within 60 calendar days. [1991 c.749 §14] The State Board of Education shall
establish by rule procedures prescribing the eligibility criteria for
early childhood special education and early intervention services. [1991
c.749 §15] (1)
Whenever the parent of a child believes that the child is eligible for
early childhood special education or early intervention services or is
concerned about the child’s developmental progress, the parent may
initiate a referral to the contractor, or the designated referral and
evaluation agency, in the county where the child resides.

(2) Services contractors, community agencies or individuals in the
community may also assist the family to initiate a referral if they
believe that a child is eligible for early childhood special education or
early intervention services or they are concerned about the child’s
developmental progress.

(3) Nothing in this section shall relieve school districts of the
duty to identify, locate and evaluate preschool children with
disabilities under ORS 343.157. [1991 c.749 §16; 1993 c.45 §236; 1993
c.749 §19](1) In accordance with
rules of the State Board of Education, the agencies under contract with
the Department of Education to provide early childhood special education
or early intervention services must ensure that an individualized family
service plan is developed for each preschool child with a disability, as
defined in ORS 343.035, who is determined eligible for early childhood
special education or early intervention services and for the child’s
family. The Department of Education or its contractors shall not be
responsible for the cost of other services of the individualized family
service plan that are not early childhood special education or early
intervention services.

(2) The State Board of Education shall establish by rule the
contents of an individualized family service plan and the procedures for
the development, review and revision of an individualized family service
plan.

(3) Each agency under contract with the Department of Education to
provide early childhood special education or early intervention services
shall use the individualized family service plan forms established by the
Department of Education in the development, review and revision of
individualized family service plans. [1991 c.749 §17; 1993 c.409 §6; 1995
c.237 §2; 1999 c.989 §26; 2003 c.266 §1; 2005 c.662 §11]Service coordination shall be
provided as an early intervention service or may be provided as other
services for children and families in early childhood special education
as defined under ORS 343.035 and shall include:

(1) Coordinating all services across agency lines;

(2) Assisting parents of eligible children in gaining access to
early intervention services and other services identified in the
individualized family service plan;

(3) Facilitating the timely delivery of available services; and

(4) Continuously seeking the appropriate services and situations
necessary to benefit the development of each child being served for the
duration of the child’s eligibility. [Formerly 343.095](1) A contractor or contractor’s designee shall
give written notice to the parents of a preschool child with a disability
or the parents of a preschool child suspected of having a disability
within a reasonable time before the contractor or the contractor’s
designee:

(a) Proposes to initiate or change the identification, evaluation
or placement of the child or the provision of early childhood special
education or early intervention services to the child; or

(b) Refuses to initiate or change the identification, evaluation or
placement of the child or the provision of early childhood special
education or early intervention services 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 contractor or designee 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. [1991 c.749 §18; 1995 c.237 §3; 1999 c.989 §27] (1) The State Board of Education
shall establish by rule the procedural safeguards for the implementation
of early intervention services.

(2) The State Board of Education shall assure by rule that all
preschool children who are three years of age to eligibility for entry
into kindergarten are provided by the Department of Education the same
procedural safeguards and rights as those provided to school-age children
with disabilities under this chapter. [1991 c.749 §§19,20; 1993 c.409 §7](1) The Department of Education shall not bill a
resident school district for a child receiving services under this
section even if the child is served by a county or regional program
otherwise subject to ORS 343.243.

(2) The resident school district shall provide transportation
service to preschool children with disabilities, as defined in ORS
343.035, age three until the age of eligibility for kindergarten, if such
service is determined to be a related service and, as required, to
children from birth to three years of age, enrolled in programs under ORS
339.185, 343.035, 343.041, 343.055, 343.065, 343.157 and 343.455 to
343.534, and the district may include those costs in its claims for
transportation costs reimbursement by the state. No state agency is
required to pay transportation other than the claims on the State School
Fund. [Formerly 343.363] (1) The
funds specially appropriated to early childhood special education and
early intervention services shall be contracted to providers that have
been approved by the Superintendent of Public Instruction.

(2) State funds shall be allocated on an approved program basis,
the amount of which shall be established pursuant to rules of the State
Board of Education.

(3) The provider shall account for the grant funds as expended on a
form acceptable to the superintendent pursuant to rules of the state
board. [1991 c.749 §28]APPROPRIATE LEARNING MEDIA FOR BLIND STUDENTS (BRAILLE) As used in ORS
343.565 to 343.595:

(1) “Braille” means the system of reading and writing through touch
commonly known as standard English Braille.

(2) “Student who is blind” means an individual who:

(a) Is eligible for special education due to visual impairment; or

(b) Has a medically indicated expectation of visual deterioration.
[1993 c.380 §2; 1999 c.989 §28](1) In developing the individualized education program for
each student who is blind, the presumption shall be that proficiency in
reading and writing is essential for the student to achieve satisfactory
educational progress. Each student who is blind shall be assessed to
determine the most appropriate learning media, including but not limited
to Braille. The individualized education program team shall determine the
optimum learning media.

(2) Braille instruction and use are not required by this section
if, in the course of developing the student’s individualized education
program, all members of the team concur that the student’s visual
impairment does not affect reading and writing performance commensurate
with ability.

(3) Nothing in this section requires the exclusive use of Braille
if other special education services are appropriate to meet the student’s
educational needs. The provision of other appropriate services does not
preclude Braille use or instruction. [1993 c.380 §3]Instruction in Braille reading and writing provided under
ORS 342.153 and 343.565 to 343.595 shall be sufficient to enable each
student who is blind to communicate effectively. When the need for
Braille is determined, the student’s individualized education program
shall specify the extent and nature of the student’s training in Braille,
pursuant to standards adopted by rule of the State Board of Education.
[1993 c.380 §4]The State Board of
Education shall require a publisher of a textbook adopted by a school
district to furnish the Oregon Textbook and Media Center with computer
diskettes for literary subjects in a computer-accessible format from
which Braille versions of the textbook can be produced. The publisher
shall furnish the center with computer diskettes in a computer-accessible
format for nonliterary subjects, such as natural sciences, computer
science, mathematics and music, when Braille specialty code translation
software is available. [1993 c.380 §5] It shall be the
policy of this state that blind students who, due to lack of visual
acuity or perception, cannot read printed material at a competitive rate
of speed and with facility, or who have a reasonable expectation of
visual deterioration, shall be encouraged to learn to read and write
Braille. [Formerly 343.945]DISADVANTAGED CHILDREN As used in ORS
343.650 to 343.680, unless the context requires otherwise:

(1) “Disadvantaged children” means children who in their
backgrounds are socially or culturally deprived to such a degree that
without supplemental facilities and services they cannot profit in the
regular school program to the same extent as children with normal
backgrounds.

(2) “Facilities and services”:

(a) Means special equipment, materials, supplies and services and
regular equipment, materials, supplies and services to the extent that
they are specially used or consumed in providing special education for
the primary purpose of preventing or overcoming learning deficiencies; and

(b) Includes special classes, special instruction in or in addition
to regular classes, nursery schools and kindergartens, extracurricular
programs, camp and recreation programs, testing and research programs,
orientation programs, counseling and guidance programs, cafeteria
service, transportation and the construction and use of special schools
or centers, or the construction of additions thereto. [1965 c.531 §1;
1967 c.443 §1] The
district school board of any school district in which the regular school
program is inadequate for the educational needs of disadvantaged children
may provide facilities and services for such children during and outside
of regular school hours and regular school days. [1965 c.531 §2; 1973
c.707 §4; 1973 c.750 §14] Notwithstanding the
provisions of any other law, the Department of Education may make advance
payment from funds received by the Department of Education pursuant to
Public Law 89-10, as further amended by Public Law 95-561, to school
districts based on the estimated cost of any approved program or service
to be provided. [1965 c.531 §6; 1989 c.491 §43; 1993 c.45 §238](1) For the purposes
of carrying out the provisions of ORS 343.650 to 343.670 the Department
of Education shall advance to or reimburse any common or union high
school district with at least 40,000 average daily membership, as defined
by ORS 327.006, from funds specifically appropriated for such purposes,
such amounts as may from time to time be certified by such district as
required therefor.

(2) The certificate shall specify separately:

(a) The amounts required for operations; and

(b) The amounts required for construction of special schools or
centers, or additions thereto.

(3) The amounts obtained for construction shall be related to
progress of construction as determined by the district.

(4) Any amounts remaining unexpended and unobligated as of June 30
of the fiscal year or biennium for which they were appropriated shall
revert to the General Fund. [1967 c.443 §3; 1981 c.487 §1; 1993 c.45 §239]MIGRANT CHILDREN As used in ORS
343.810 to 343.835, unless the context requires otherwise:

(1) “Migrant child” means a child between 3 and 21 years of age who
is in the custody of migrant workers whether or not they are parents of
the child.

(2) “Migrant worker” means an individual engaged in agricultural
labor who does not regularly reside in the county in which the individual
is performing the agricultural labor.

(3) “School district” includes education service districts and
state institutions. [1961 c.502 §1; 1963 c.570 §30; 1965 c.100 §430; 1987
c.243 §1] School districts may
establish summer programs for migrant children to supplement the regular
school program and provide instruction in those educational areas in
which the migrant child needs special help. The summer programs may be
attended by migrant children who will attend regular school sessions in
the ensuing school year. [1961 c.502 §§7,8; 1963 c.570 §31; 1965 c.100
§431]Pursuant to rules of the State Board of Education, school
districts shall submit a proposed budget for summer programs to the
Superintendent of Public Instruction for approval. Upon completion of the
summer program the claim shall be presented to the Superintendent of
Public Instruction for reimbursement which shall be made only for the
actual and approved expenses incurred in the program. Expenditures made
by a school district in carrying out a summer program shall not be
subject to the Local Budget Law (ORS 294.305 to 294.565). [1961 c.502 §9;
1963 c.570 §31a; 1965 c.100 §432; 1989 c.491 §45]MISCELLANEOUS PROVISIONSThe Department of Education shall:

(1) Pursuant to rules of the State Board of Education, require that
programs for students with moderate to severe retardation meet program
standards.

(2) Supply the Department of Human Services with information, on
forms developed by the Department of Human Services, concerning all
students with moderate to severe retardation who are 15 years of age and
older, which the Department of Human Services needs to serve and plan for
their transition to adult living and work situations.

(3) Implement programs for students with moderate to severe
retardation under ORS 343.236 in a manner that continues the pattern of
services in neighborhood and community schools which existed on July 1,
1985. [1985 c.555 §12; 1989 c.971 §7; 1991 c.795 §11](1) The
Department of Education shall be responsible for payment of the cost of
the education in programs with which the Department of Human Services or
Oregon Youth Authority contracts for long-term care or treatment.
Programs eligible for such education shall be in accordance with criteria
adopted by rule by the State Board of Education.

(2) The Department of Education shall be responsible for payment of
the costs of such education by contract with the school district,
excluding transportation, care, treatment and medical expenses. The
resident district shall provide transportation to pupils enrolled in
programs under ORS 430.715 who live at home but require day treatment.
The payments may be made to the school district or, at the discretion of
the school district, to the district providing the education, as set
forth in subsection (3) of this section, from the funds appropriated for
the purpose.

(3) The school district in which the agency is located is
responsible for providing the education directly or through an adjacent
school district or through the education service district in which the
program is located or one contiguous thereto. The instruction may be
given in facilities of such districts or in facilities provided by such
agency.

(4) The school district may request the Department of Education to
combine several private agency school programs into one contract with a
school district, an adjacent school district or an education service
district.

(5) The Department of Human Services shall give the school district
providing the education at a treatment program 14 days’ notice before a
student is dismissed from the treatment program.

(6) The Department of Education may make advances to such school
district from funds appropriated therefor based on the estimated agreed
cost of educating the pupils per school year. Advances equal to 25
percent of such estimated cost may be made on September 1, December 1 and
March 1 of the current year. The balance may be paid whenever the full
determination of cost is made.

(7) School districts which provide the education described in this
section on a year-round plan may apply for 25 percent of the funds
appropriated therefor on July 1, October 1, January 1, and 15 percent on
April 1. The balance may be paid whenever the full determination of cost
is made.

(8) In addition to the payment methods described in this section,
the Department of Education may:

(a) Negotiate interagency agreements to pay for the cost of
education in treatment programs operated under the auspices of the State
Board of Higher Education; and

(b) Negotiate intergovernmental agreements to pay for the cost of
education in treatment programs operated under the auspices of the Oregon
Health and Science University Board of Directors. [1985 c.555 §19a;
enacted in lieu of 343.960 and 343.965; 1987 c.223 §1; 1989 c.1011 §1;
1991 c.780 §26; 1991 c.795 §13; 1993 c.749 §20; 1997 c.521 §26]

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