BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1124
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          Date of Hearing:   April 15, 2009

                           ASSEMBLY COMMITTEE ON EDUCATION
                                Julia Brownley, Chair
                    AB 1124 (Yamada) - As Amended:  April 13, 2009
           
          SUBJECT  :   Special education: due process hearings

           SUMMARY  :    Requires local educational agencies (LEAs) to  
          continue to provide early intervention services to a child who  
          is no longer eligible to receive those services through a  
          regional center because that child has turned three years old  
          during the pendency of a dispute resolution hearing, if the  
          dispute involves an application for initial services under a  
          preschool program serving individuals with exceptional needs  
          between three to five years of age.  Specifically,  this bill  : 

          1)Provides that this bill shall be implemented only to the  
            extent that the Legislature appropriates funds made available  
            to it by the federal government pursuant to the American  
            Recovery and Reinvestment Act of 2009 (ARRA) or other federal  
            legislation similarly intended to provide higher levels of  
            federal special education funding. 

          2)Makes minor technical corrections. 

           EXISTING LAW  : 

          1)Establishes the right of individuals with exceptional needs to  
            receive a free appropriate public education and ensures the  
            right to special instruction and related services needed to  
            meet their individual and unique needs, in conformity with  
            federal law and regulations.

          2)Provides that if a due process hearing request involves an  
            application for initial services from a child who is  
            transitioning from an early education program serving  
            individuals with exceptional needs between the ages of three  
            to five, inclusive, and is no longer eligible for early  
            education services because the child turned three the LEA is  
            not required to provide the early education services that the  
            child had been receiving. 

           FISCAL EFFECT  :   This bill creates a state-mandated local  
          program. 








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           COMMENTS  :  The federal Individuals with Disabilities Education  
          Act (IDEA) affords rights and services to children with  
          disabilities.  Part C of IDEA requires that infants and toddlers  
          with disabilities receive early intervention services from birth  
          to age 3. Children and youth, ages 3 through 21 receive special  
          education and related services under IDEA Part B.  The federal  
          IDEA was reauthorized in 2004 and its implementing federal  
          regulations became effective in October, 2006.  California has  
          through legislation, namely AB 1662 (Lieber), Chapter 653,  
          Statutes of 2005 and AB 1663 (Evans), Chapter 454, Statutes of  
          2007 aligned state law with the provisions of the 2004 IDEA and  
          its implementing regulations.  

           Stay-put provision  :  The new IDEA regulations include a change  
          regarding a child's status during dispute resolution proceedings  
          particularly when a child is transitioning from early  
          intervention services to a preschool program. The new  
          regulations state that if the complaint involves an application  
          for initial services under Part B for a child who has turned  
          three and is no longer eligible for services under Part C, the  
          LEA is not required to provide the Part C services that the  
          child had been receiving as part of the child's Individualized  
          Family Service Plan (IFSP).  As noted in the federal  
          regulations, "The programs under Parts B and C of IDEA differ in  
          their scope, eligibility, and the services available. Services  
          under Part B of the Act are generally provided in a school  
          setting. By contrast, services under Part C of the Act are  
          provided, to the maximum extent appropriate, in the natural  
          environment, which is often the infant or toddler's home or  
          other community program designed for typically developing  
          infants or toddlers."

          In California, the early intervention services are provided  
          through the Department of Developmental Services (DDS) working  
          with regional centers.  The placement and services under Part C  
          are focused primarily on the child's  developmental  needs and are  
          outlined in the child's IFSP.  In contrast, Part B services are  
           educational  in nature and are provided by LEAs to meet the  
          federal requirement to provide pupils with disabilities a free  
          and appropriate public education (FAPE).  

          When a child transitions from Part C to Part B, he or she may  
          still be eligible to receive services through a regional center  
          in which case, an individual program plan (IPP) is developed for  








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          the child.  In addition, the child may also be eligible for  
          special education services and related services in which case an  
          individualized education program (IEP) is developed for the  
          child.  The expertise of both entities the regional center and  
          the LEA can complement each other to serve the developmental and  
          educational needs of the pupil. In other cases, the child  
          transitions completely to a preschool program and receives  
          services solely through the LEA.  

          There are cases when there is disagreement regarding placement  
          and/or contents of the IEP.  A process is currently in place to  
          resolve a dispute which can include a request for a due process  
          hearing.  Under Part B, if there is a dispute, the child is  
          allowed to remain in his or her current educational placement  
          (stay-put) during the dispute.  Stay-put does not apply during  
          the transition from Part C to Part B because the United States  
          Department of Education (USDOE) "has long interpreted the  
          current educational placement language in the 'stay-put'  
          provision as referring only to the child's placement under Part  
          B of IDEA and not to the early intervention services received by  
          the child under Part C of the Act."  When the dispute involves  
          an initial application for services the child technically does  
          not have an educational placement.  The USDOE states, "We  
          believe that a child who previously received services under Part  
          C of the Act, but has turned three and is no longer eligible  
          under Part C, and is applying for initial services under Part B  
          of the Act, does not have a 'current educational placement.'"  

          Prior to 2007, California law was silent on this issue and the  
          courts interpreted the law when these cases emerged.  

          The goal of this bill is to ensure that there are no  
          interruptions in services for children during the pendency of a  
          hearing when the dispute involves an intial application for  
          services under Part B.  This bill could have the effect of  
          requiring school districts to implement a child's IFSP.  Without  
          additional funds, LEAs may find it difficult to provide the  
          services that regional centers provide for infants and toddlers  
          such as applied behavior analysis, nutrition services, or  
          pragmatic speech/socialization services.  LEAs could use  
          providers for these services but the providers may not  
          necessarily be the same as the regional center providers which  
          will in turn create an interruption and delay in services for  
          the child.  This may be contrary to the intent of the bill which  
          is to provide a smooth and seamless transition for children in  








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          transition during the pendency of a hearing.  

           The Legislative Blue Ribbon Commission on Autism  (Commission)  
          reported that families often encounter difficulties when  
          children with Autism Spectrum Disorders (ASD) reach age three  
          and transition from the Early Start Program services to the LEA  
          program.  The report from the Commission states, "The transition  
          may occur without appropriate planning, case management, and  
          communication, and therefore cause disruptions in evaluations  
          and effective interventions during a critical period in early  
          child development. The transition may also cause the child to  
          lose access to services and particular service providers, since  
          regional center and local education agency programs may not  
          offer the same or comparable services or service providers.   
          Some schools, especially those in rural areas, may have very  
          limited access to service providers."  

          The Commission identified as one of its priorities providing a  
          seamless and integrated transition from regional centers to  
          school districts at three years of age, and thus recommended to  
          establish a multi-site demonstration project to establish a  
          seamless system for service delivery between regional centers  
          and school districts for children with ASD from birth to  
          kindergarten. 

          It is unclear as to how many children this bill could  
          potentially impact and what the actual cost of providing these  
          services would be. According to the California Department of  
          Education (CDE) in 2006-07 there were 13 complaints related to  
          the transition from early intervention services to preschool  
          programs and in 2005-06 there were 9 cases.  It could be argued  
          that this bill will have an impact on a small number of children  
          and that the benefits that this bill will afford to these  
          children outweigh the costs for providing these services.  

          This bill requires LEAs to provide additional services in excess  
          of federal IDEA and therefore this can potentially create a  
          reimbursable state mandate.  The bill specifies that it shall be  
          implemented only to the extent that there is an appropriation  
          made from federal funds through the ARRA or other federal  
          legislation.  It is not clear that Part B ARRA funds will be  
          available for this purpose and furthermore the decisions on the  
          uses of ARRA funds should be made in the context of the entire  
          state budget. The language in the bill does not make it clear  
          that the bill would be implemented pursuant to an appropriation  








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          made specifically for this purpose.  As the bill reads, it could  
          be implemented if the Legislature makes any appropriation from  
          the ARRA or other federal legislation.   Staff recommends  the  
          bill be amended to add "for this purpose" on page 4, line 6  
          after "funding"

          The American Recovery and Reinvestment Act of 2009 (ARRA)  
          (Public Law 111-5) appropriates new funding for programs under  
          Parts B and C of IDEA.  According to the United States  
          Department of Education, "The IDEA ARRA Funds will provide an  
          unprecedented opportunity for states, LEAs, and EIS [early  
          intervention services] programs to implement innovative  
          strategies to improve outcomes for infants, toddlers, children,  
          and youth with disabilities while stimulating the economy.   
          Under the ARRA, the IDEA Part B ARRA funds are provided under  
          three authorities:  $11.3 billion is available under Part B  
          Grants to States; $400 million is available under Part B  
          Preschool Grants; and $500 million is available under Part C  
          Grants for Infants and Families."

          The CDE estimates that the ARRA may provide up to $1.3 billion  
          to California for purposes of funding IDEA services for pupils  
          with disabilities ages 3-21.  CDE provides examples of potential  
          allowable uses of these funds:

          1)State-of-the-art assistive technology devices and training in  
            their use to enhance access to the general curriculum for  
            students with disabilities.

          2)Intensive district-wide professional development for special  
            education and regular education teachers that focuses on  
            scaling-up, through proven strategies in reading, math,  
            writing, science, and positive behavioral supports to improve  
            outcomes for students with disabilities.

          3)Develop or expand the capacity to collect and use data to  
            improve teaching and learning.

          4)Expand the availability and range of inclusive placement  
            options for preschoolers with disabilities by developing the  
            capacity of public and private preschool programs to serve  
            these children.

          5)Hire transition coordinators to work with employers in the  
            community to develop job placements for youth with  








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            disabilities.

          The author states, "Current law does not establish a safeguard  
          for children who turn three during a due process hearing and who  
          are not yet eligible for services provided by local educational  
          agencies (LEA), which school districts usually provide."

           Arguments in support  :  The National Autism Association writes,  
          "Children receiving early intervention programs through their  
          Regional Center cannot afford to have those services interrupted  
          in the event a dispute arises during the transition from  
          Regional Center to the School District.  Valuable time and gains  
          made in acquisition of skills will be lost if services are  
          interrupted during this transition." 

           Arguments in opposition  :  The California Association of School  
          Business Officials writes, "AB 1124 would force preschool  
          programs to provide services under an Individualized Education  
          Program (IEP) to which they had no input and continue services  
          that may no longer be necessary or relevant."

           Prior legislation  :  AB 1768 (Evans and Lieber) of 2008 requires  
          local educational agencies (LEAs) to continue to provide early  
          intervention services to a child who is no longer eligible to  
          receive those services through a regional center because that  
          child has turned three years old during the pendency of a  
          dispute resolution hearing, if the dispute involves an  
          application for initial services under a preschool program  
          serving individuals with exceptional needs between three to five  
          years of age.  AB 1768 was held in the Assembly Appropriations  
          Committee.

          AB 1663 (Evans), Chapter 454, Statutes of 2007 makes various  
          revisions to state special education statutes to bring them in  
          conformity with federal changes enacted through the 2004  
          reauthorization of the Individuals with Disabilities Education  
          Improvement Act and implementing federal regulations, including  
          the specification that stay put does not apply to a child  
          receiving services under Part C and is applying for initial  
          services under Part B because he or she has turned three years  
          of age.












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           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Association of Regional Center Agencies
          Autism Society of America-California Chapter
          Autism Society of America-Inland Empire Chapter
          Autism Society of America, Santa Barbara Chapter
          Autism Speaks-Sacramento Advocacy Committee
          California Federation of Teachers
          Disability Rights California
          Families for Early Austism Treatment
          Families for Effective Austism Treatment-Fresno Madera Counties
          Friends of Children with Special Needs
          Learning Rights
          National Autism Association
          Parents Helping Parents
          Sacramento Asperger Syndrome Information & Support
          Schafer Autism Report
          Several individuals

           Opposition 
           
          California Association of School Business Officials
          California Association of School Psychologists
          California School Boards Association
          California Teachers Association
          San Francisco Unified School District
           
          Analysis Prepared by  :    Marisol Avi?a / ED. / (916) 319-2087