BILL ANALYSIS
AB 1517
Page 1
Date of Hearing: April 22, 2009
ASSEMBLY COMMITTEE ON EDUCATION
Julia Brownley, Chair
AB 1517 (Bill Berryhill) - As Amended: April 13, 2009
SUBJECT : Special education: alternative dispute resolution
programs
SUMMARY : Requires, subject to an appropriation in the annual
Budget Act or other statute, the California Department of
Education (CDE) to establish and administer a statewide program
of grant funding to establish alternative dispute resolution
(ADR) programs for special education. Specifically, this bill :
1)Requires the program includes all of the following:
a) An advisory board that includes representatives from
local ADR programs to ensure ongoing communication;
b) An annual statewide conference for all implementers of
ADR programs;
c) Criteria for awarding grants, funding, data collection,
and evaluating ADR programs;
d) The selection of recipients and allocation of funding;
and
e) The selection of individuals to serve as mentors to
support implementers.
2)States legislative intent relative to the implementation of
ADR programs.
EXISTING LAW :
1)Establishes the right of individuals with exceptional needs to
receive a free appropriate public education (FAPE) 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)Requires each non-educational and educational agency that
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provides education, related services, or both, to children who
are individuals with exceptional needs to establish and
maintain all of the procedural safeguards pursuant to federal
law, including mediation of disputes and due process hearings.
3)Prescribes the procedure for filing a complaint with the CDE
to allege a violation of state or federal law regarding the
provision of special education instruction and services and
for conducting a voluntary prehearing mediation conference and
a due process hearing to resolve a dispute.
4)Declares the intent of the Legislature that parties to special
education disputes be encouraged to seek resolution through
mediation prior to filing a request for a due process hearing.
5)Authorizes CDE to award grants to establish Family Empowerment
Centers on Disability in each of the 32 regions in the state
established under the Early Start Family Resource Centers to
provide training and information for underserved parents and
guardians of children and young adults with disabilities.
FISCAL EFFECT : Unknown
COMMENTS : Under the federal Individuals with Disabilities
Education Act (IDEA), every pupil with disabilities is entitled
to FAPE. Special education and related services are provided as
specified in a pupil's individualized education program (IEP).
The IEP is reviewed periodically between school officials and
the pupil's parents. If a dispute arises regarding the pupil's
IEP, the state must offer parents opportunities to resolve
disagreements through mediations and/or due process hearings.
IDEA encourages the use of mediation to resolve such disputes
but it does not mandate ADR programs.
As of January 1, 2006, the Office of Administrative Hearings
(OAH) assumed responsibility for providing mediations in
addition to due process hearing services for special education.
Parties seeking dispute resolution through OAH have the option
of requesting due process with mediation or mediation only.
OAH's 2008-2009 Fiscal Year, 2nd Quarter report shows that OAH
received 564 requests for mediation related to due process
hearings or mediation-only requests. Of those, 42 were requests
for mediation only and the remaining 522 requests for mediation
were related to due process hearing requests. After a request
has been filed by a parent, there is a mandatory resolution
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session for parties to come together prior to mediation. If the
dispute is not settled, OAH schedules a mediation session with
an unbiased and independent mediator. If the parties do not
reach an agreement after mediation, the parties maintain the
right to a due process hearing. According to a report by the
Public Policy Institute of California (PPIC), Resolving Special
Education Disputes in California, in 2007-08, about 74% of all
disputes settled through the resolution session, mediation
conference, or outside the formal process, and only 4% ended
with an administrative law judge's (ALJ) decision.
Outside the statewide dispute resolution process, there are
minimal local level ADR options to resolve disputes or to
prevent disputes. There are funds currently available for a
pilot program administered by the California Department of
Education (CDE) that provides grants to 20 LEAs to develop and
test procedures, materials, and training to support ADR in
special education. The purpose of ADR programs is to resolve
disputes at the local level in non-adversarial environments
before they escalate and become costly formal disputes.
The availability of existing funds for ADR is limited to 20
LEAs, and the program is not in statute. The authority for the
program comes directly from Budget Item 6110-161-0890, Schedule
4, Provision 4, which provides $300,000 for purposes of
developing and testing procedures, materials, and training for
alternative dispute resolution in special education. These LEAs
are eligible for funding if they received funds in the previous
year and are required to develop and participate in local ADR
programs and according to CDE these LEAs serve as training sites
for other districts to learn ADR processes.
The following county offices of education (COE) and school
districts (SD) currently receive ADR grants: Butte COE,
Acalanes Union High SD, Mount Diablo Unified SD, West Contra
Costa Unified SD, El Dorado COE, Fresno COE, Los Angeles COE,
Long Beach Unified SD, Marin COE, Huntington Beach Union High
SD, Santa Ana Unified SD, Placer COE, Val Verde Unified SD,
Sacramento City Unified SD, San Joaquin COE, San Luis Obispo
COE, San Mateo COE, Shasta COE, Solano COE, and Sonoma COE.
According to CDE, no evaluation has been conducted of the
existing ADR program as there is no statutory requirement for an
evaluation. Hence no information is available to determine the
impact or effectiveness of the procedures that have been tested
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and/or implemented by the existing ADR grantees. This bill
requires data collection and evaluation of the programs, but
there is no specific requirement for a report on the existing
programs to be produced and submitted to the Legislature. Staff
recommends the bill be amended to require CDE to summarize
information and data that is currently collected from the
existing 20 grantees, and submit the summary to the Legislature
by July 1, 2010. The summary should include, but not be limited
to, strategies that are being implemented, the number of
individuals trained, and to the extent feasible, the strategies
that demonstrate effectiveness.
Impact on existing grantees : This bill seeks to establish a
statewide program for LEAs to participate in and create more
options for resolving special education related disputes at the
local level. However, as currently drafted, the bill does not
specify whether the existing grantees would continue to be
eligible for funding. There is an existing appropriation in the
2008-09 Budget and if that appropriation remains, and this bill
is enacted, the appropriation could potentially be used for the
implementation of this program. It is unclear, however, as to
what the effect would be on the existing grantees. The bill
requires for criteria to be developed for awarding grants which
means that a competitive program would be created and the
existing grantees may or may not have to re-apply for funding.
This bill may have the effect of redistributing the existing
funds to LEAs other than those currently receiving funds.
Considering that these LEAs have been implementing ADR
strategies for a number of years and have served as training
sites, it may be prudent to allow these LEAs to continue
receiving grants and to operate their programs and services, as
they may already have the infrastructure in place to operate ADR
programs. Staff recommends the bill be amended to "grandfather"
the existing grantees and as more funding becomes available for
additional grants, expand the program accordingly.
PPIC's report on dispute resolution recommends expanding the
availability of ADR programs and states, "ADR aims to increase
efficiency, trust, and cost-effectiveness on both sides. For
example, the technique of including a third party during the
development of educational plans for disabled students
emphasizes dispute prevention. Although the research on
alternative techniques is currently limited, the findings from
this and other existing work support the idea of expanding their
availability across the state and analyzing their
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effectiveness."
According to information provided by the author and the sponsor
of the bill, the Coalition for Adequate Funding for Special
Education, "A typical due process hearing for special education
disputes costs school districts an average of $40,000 per
student." ADR would provide access to less costly alternatives
for resolving disputes at the local level.
Arguments in support : The California Association of School
Psychologists (CASP) writes, "CASP believes that the expansion
of the existing pilot program statewide provides the opportunity
for parents and school districts the ability to negotiate
successfully over appropriate services for disabled students
through a framework that is equitable, cost effective and
efficient."
Previous legislation : SB 605 (Machado) of 2005 requires the CDE
to administer a grant program for ADR to resolve special
education disputes. SB 605 was held in the Senate Education
Committee.
SB 636 (Machado) of 2003 authorizes grants, subject to the
availability of federal funds, to SELPAs to implement
alternative dispute resolution programs for special education.
SB 636 was vetoed by Governor Davis. The veto message read in
part:
Although I support more efficient ways resolve
disputes, current law already allows for the
non-adversarial resolution of special education issues
through mediation prior to a formal, due process
hearing. Since the 2003 Budget Act already
appropriates $10.3 million for dispute resolution
services including mediation and fair hearing
services, this bill would create an unnecessary
duplicate program.
This bill appropriates $300,000 to the SDE for
administration of the ADR program and could result in
local assistance costs between $13.1 and $17.8 million
for three years and ongoing costs of between $3.3 and
$4.4 million annually. This bill would redirect these
funds from educational services to students with
disabilities, to program administration.
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It is premature to implement a new program prior to
analyzing the results of a current Alternative Dispute
Resolution pilot program in operation. This program
could be replicated at other Special Education Local
Plan Areas, possibly with little guidance and
assistance. Additionally, California has 11 federally
funded Parent Training and Information Centers, and 32
Family Empowerment Centers. These entities should
provide training, information and resources to parents
relative to alternative dispute resolution.
REGISTERED SUPPORT / OPPOSITION :
Support
California Association of School Psychologists
California Association of Suburban School Districts
Coalition for Adequate Funding for Special Education
Exeter Union High School District
Exeter Union School District
Farmersville Unified School District
Orange County Department of Education
Special Education Local Plan Area Administrators
Opposition
None on file.
Analysis Prepared by : Marisol Avi?a / ED. / (916) 319-2087