BILL ANALYSIS AB 1124 Page 1 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. AB 1124 Page 2 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 AB 1124 Page 3 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 AB 1124 Page 4 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 AB 1124 Page 5 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 AB 1124 Page 6 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. AB 1124 Page 7 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