BILL ANALYSIS SENATE COMMITTEE ON EDUCATION Gloria Romero, Chair 2009-2010 Regular Session BILL NO: AB 1841 AUTHOR: Buchanan AMENDED: June 3, 2010 FISCAL COMM: No HEARING DATE: June 16, 2010 URGENCY: No CONSULTANT:Lynn Lorber NOTE : This bill has been referred to the Committees on Education and Judiciary. A "do pass" motion should include referral to the Committee on Judiciary. SUBJECT : Special education: parental consent. KEY POLICY ISSUES Should state special education law be amended to conform to federal regulations? Is California jeopardizing federal special education funds by being out of compliance with federal law? Should schools no longer be required to initiate a due process complaint against parents who revoke consent for special education for their child? Should the individualized education program (IEP) team agree with the revocation of consent before instruction and services are terminated? Do the rights of parents outweigh the role and input of the IEP team? SUMMARY This bill conforms state law to federal law by specifically prohibiting schools from initiating due process procedures against a parent of a student with special needs if the parent revokes consent for special education. BACKGROUND Current federal law and regulations The federal Individuals with Disabilities Education Act AB 1841 Page 2 (IDEA) requires that all children with disabilities be provided a free appropriate public education (FAPE) in the least restrictive environment, and sets forth the responsibilities of states and local education agencies. 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. The revised federal regulations provide that "consent" means that: 1) The parent has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or through another mode of communication. 2) The parent understands and agrees in writing to the carrying out of the activity and the consent describes that activity and lists the records (if any) that will be released and to whom. 3) The parent understands that the granting of consent is voluntary on the part of the parent and may be revoked at any time. If a parent revokes consent in writing 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. (Code of Federal Regulations, Title 34, Section 300.9) The federal regulations also 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: 1) May not continue to provide special education and related services but must provide prior written notice before ceasing the provision of special education and related services. 2) May not use procedural safeguards, including mediation or due process, in order to obtain agreement or a AB 1841 Page 3 ruling that the services may be provided to the child. 3) Will not be considered to be in violation of the requirement to make FAPE available to the child because of the failure to provide the child with further special education and related services. 4) Is not required to convene an individualized education program (IEP) team meeting or develop an IEP for the child for further provision of special education and related services. (34 CFR 300.300) Current state law : 1) Requires a local education agency (LEA) to seek to obtain informed consent from the parent of a child prior to the provision of special education or related services. (Education Code 56346) 2) Prohibits LEAs from providing special education or related services to a child if the parent fails to respond or refuses to consent to the initiation of special education or related services. (EC 56346) 3) Prohibits LEAs from filing a due process complaint against a parent who fails to respond or refuses to consent to the initiation of special education and related services. (EC 56346) 4) Applies both of the following if the parent refuses initial consent or fails to respond to a request to provide consent: a) The LEA shall not be considered to be in violation of the requirement to make FAPE available to the child for failure to provide special education and related services for which the LEA requests consent. b) The LEA shall not be required to convene an IEP team meeting or develop an IEP for the child. (EC 56346) 5) Requires LEAs to file a request for due process if the parent of a child with special needs refuses all services in the IEP after having consented to those AB 1841 Page 4 services in the past. (EC 56346) 6) Essentially mirrors federal regulations with respect to parental consent but is silent regarding the amendment of education records if parental consent is revoked. (EC 56021.1) ANALYSIS This bill conforms state law to federal law by prohibiting schools from initiating due process procedures against a parent of a student with special needs if the parent revokes consent for special education. Specifically, this bill: 1) Deletes the requirement that a local educational agency file a request for due process if a parent of a child with special needs revokes consent for all services in the individualized education program (IEP) after having consented to those services in the past. 2) Prohibits a public agency from doing the following if a parent of a child with special needs submits a written revocation of his or her consent at any time subsequent to the initial provision of special education and related services to the child: a) Continue to provide special education and related services to the child, but is required to provide prior written notice to the child's parent before ceasing the provision of special education and related services. 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) Deems a public agency to be in compliance with the requirement to make a free appropriate public education available to a child if the agency ceases to provide the child with further special education and related services. 4) Specifies that a public agency is not required to convene an IEP team meeting or develop an IEP for the AB 1841 Page 5 child for further provision of special education. 5) Specifies that a public agency is not required to amend the education records of a child to remove any reference to the child's receipt of special education and services if the child's parent submits a written revocation of consent after the initial provision of special education and related services to the child. STAFF COMMENTS 1) Need for the bill . According to 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 could sanction the California Department of Education, and reduce or withhold federal funds the state receives for special education services." 2) Conforms with consent for initial provision of special education . Current law prohibits local education agencies from filing a due process complaint against a parent who fails to respond or refuses to consent to the initiation of special education and related services. This bill extends this prohibition to situations where a parent initially gives consent but subsequently revokes that consent. 3) Role of the parent vs IEP team . Concerns were raised during deliberations on the federal regulations about leaving parents unchallenged by a due process complaint or individualized education program (IEP) team meeting upon revocation of consent for special education. While it is the role of the IEP team, of which the parent is a member, to produce an IEP that describes the specific instruction and related services to be provided to the pupil, the parent must give written consent agreeing to that instruction and those services before it may be provided. In response to these concerns, the United States Department of Education determined that the federal regulations were "consistent with the IDEA's emphasis on the role of AB 1841 Page 6 parents in protecting their child's rights and the Department's goal of enhancing parent involvement and choice in their child's education." Should the IEP team agree with the revocation of consent before instruction and services are terminated? Do the rights of parents outweigh the role and input of the IEP team? 4) All or nothing ? Current law provides that a parent may consent to only a portion of the IEP, and requires those components to which the parent consented to be implemented. However, current law does require a local education agency to initiate a due process hearing if it determines a component to which the parent does not consent is necessary to provide FAPE. This bill does not alter these provisions. (EC 56346) 5) Future eligibility . This bill does not affect a pupil's eligibility for special education and related services subsequent to revocation of consent. 6) Pupil records . This bill clarifies that a public agency is not required to amend the education records of a child to remove any reference to the child's receipt of special education and services if consent is revoked. This language addresses the issue of retroactivity; if special education and related services are provided and subsequently revoked, the past provision of special education is not negated, and therefore, the pupil's record should continue to reflect that special education and related services were provided at one time. This provision conforms to federal regulations. 7) Prior legislation . AB 1663 (Evans, Ch. 454, 2007) made various revisions to state special education statutes to bring them into conformity with federal changes enacted through the 2004 reauthorization of IDEA and its implementing federal regulations. AB 685 (Karnette, Ch. 56, 2007) made technical changes to several provisions of the AB 1841 Page 7 Education Code and the Government Code regarding individuals with exceptional needs and special education to conform to updated federal regulations. AB 1662 (Lieber, Ch. 653, 2005) made changes to state special education statutes to bring them into conformity with federal changes enacted through the 2004 reauthorization of the IDEA. SUPPORT Association of California School Administrators California Association of Joint Powers Authorities California School Boards Association California Teachers Association Developmental Disabilities Area Board 10 Disability Rights California Los Angeles County Office of Education San Francisco Unified School District Special Education Local Plan Area Administrators Superintendent of Public Instruction OPPOSITION None received.