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  




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          (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  




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               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  




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               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  




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               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  




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               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  




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                    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.