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  








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            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. 









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           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  








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          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.  









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          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