BILL ANALYSIS AB 1841 Page 1 Date of Hearing: March 24, 2010 ASSEMBLY COMMITTEE ON EDUCATION Julia Brownley, Chair AB 1841 (Buchanan) - As Amended: March 18, 2010 SUBJECT : Special education: parental consent SUMMARY : Makes changes to state special education statutes to conform them to federal regulations governing Part B of the Individuals with Disabilities Education Improvement Act (IDEA). Specifically, this bill : 1)Deletes the requirement that a local educational agency (LEA) must file a request for due process, if the parent or guardian of a child who is an individual with exceptional needs refuses all services in the individualized education program (IEP) after having consented to those services in the past. 2)Provides that if a parent or guardian of a child submits a written revocation of his or her consent at any time subsequent to the initial provision of special education, a public agency shall not do either of the following: a) Continue to provide special education and related services to the child; or, b) Use procedural safeguards, including mediation and due process complaint procedures to obtain agreement or a ruling that the services may be provided to the child. 3)Requires the public agency to provide prior written notice before ceasing the provision of special education and related services to a child. 4)Requires that a public agency be deemed in compliance with the requirement to make a free appropriate public education (FAPE) available to a child if the agency ceases to provide the child with further special education and related services pursuant to this bill and provides that a public agency is not required to convene an IEP team meeting or develop an IEP for the child for further provision of special education and related services. 5)Stipulates that if a parent revokes consent in writing for the AB 1841 Page 2 child's receipt of special education services after the child is initially provided special education and related services, the public agency is not required to amend the child's education records to remove any references to the child's receipt of special education and related services because of the revocation of consent. EXISTING LAW requires: 1)A LEA that is responsible for providing a free appropriate public education and related services to a child with a disability to make reasonable efforts to obtain informed consent from the parent of the child before providing special education and related services to the child, as specified. 2)A LEA to file a request for due process, as specified, if the parent or guardian of a child who is an individual with exceptional needs refuses all services in the IEP after having consented to those services in the past. FISCAL EFFECT : This bill is keyed non-fiscal. COMMENTS : The federal IDEA affords educational rights and services to children with disabilities and requires that children with disabilities be provided a free and appropriate public education (FAPE). The IDEA was reauthorized in 2004 and its implementing federal regulations became effective in October, 2006. Clarifying amendments to the regulations were subsequently adopted in December, 2008. This bill makes changes to special education statute relative to parental consent for continued special education services to conform to the revised federal regulations. The revised regulations require that parental revocation of consent for the continued provision of special education and related services to a child must be made in writing; and that upon revocation of consent, a public agency must provide the parent with prior written notice before ceasing the provision of such services. Additionally, the regulations stipulate that a public agency is not required to amend the child's education records to remove any references to the child's receipt of special education and related services because of the revocation of consent. This bill makes all of these changes in California special education statutes. AB 1841 Page 3 Rationale for the changes : In the discussion regarding the recent changes on parental revocation of consent for special education services, several arguments were made to the United States Department of Education (USDOE) in support of the changes. It was argued that parents have a fundamental right to direct the education of their children and that if a parent has the right to initially consent to special education and related services, that the parent also should have the right to revoke consent for special education. It was further argued that schools should not have the right to force evaluations or services on a child through legal processes and that a student should have every right to attempt to become independent and take responsibility for his or her academic achievement without the assistance of an IEP. The USDOE determined that allowing parents to revoke consent for the continued provision of special education at any time is consistent with IDEA's emphasis on the role of parents in protecting their child's rights and the goal of enhancing parent involvement and choice in their child's education. Regarding the changes relative to a child's education records, it was determined that schools must have the ability to keep accurate records pertaining to the child and the child's receipt of special education and related services. The USDOE states that a parent's revocation of consent is not retroactive, thus the public agency is not required to amend the child's education records to remove any references to the child's receipt of special education and related services in the event the child's parent revokes consent. Arguments in opposition were made regarding some of these changes from those who argued that the decision to terminate services should be made by the IEP team. It has also been argued that if a parent believes special education services are not needed that the parent should consult with the IEP team, as the IEP team includes both the parent and professionals, rather than make that determination unilaterally. According to information provided by the author, "As a condition of receiving more than $1.2 billion in federal grant funds under the IDEA, California is required to comply with these new regulations. If the state's Education Code is not brought into compliance, the state could jeopardize its IDEA grant eligibility. If California is found noncompliant, the US Department of Education (US ED) could sanction the California AB 1841 Page 4 Department of Education (CDE), and reduce or withhold federal funds the state receives for special education services." The federal government has not given California an indication that its IDEA grant is in jeopardy, but staff from the State Superintendent of Public Instruction, the sponsor of this bill, asserts that this bill has been introduced in anticipation of the federal government taking such an action. Suggested amendment: This bill requires a public agency to provide written notice before ceasing the provision of special education and related services. The federal regulations require the notice be provided to a parent, but the language in this bill is not very clear that the notice is to be provided to the child's parent. Staff recommends a minor technical amendment as follows: On page 4, line 10, after "notice" add "to the child's parent" Arguments in Support : Disability Rights California writes, "The law historically distinguished situations in which parents seek to withdraw their children from special education. Schools were permitted to take parents to a hearing where a parent consented to special education services in the past, but refused to consent to all further special education. AB 1841 will bring state law into conformity with recently amended federal law by eliminating the aforementioned distinction. The bill will prohibit a public agency from continuing to provide special education and related services if a parent or guardian submits a written revocation of consent. AB 1841 accurately adopts the federal terms regarding parental consent and better protects the rights of parents to make educational decisions for their children." Previous Legislation : 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 IDEA and its implementing federal regulations. AB 685 (Karnette) Chapter 56, Statutes of 2007 makes technical changes to several provisions of the Education Code and the Government Code regarding individuals with exceptional needs and special education to conform to new federal regulations. AB 1841 Page 5 AB 1662 (Lieber), Chapter 653, Statutes of 2005 makes changes to state special education statutes to bring them into conformity with federal changes enacted through the 2004 reauthorization of the IDEA. REGISTERED SUPPORT / OPPOSITION : Support Superintendent of Public Instruction, Jack O'Connell (sponsor) California Teachers Association Disability Rights California Opposition None on file. Analysis Prepared by : Marisol Avi?a / ED. / (916) 319-2087