BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 1841 (Buchanan)
As Amended June 3, 2010
Hearing Date: June 22, 2010
Fiscal: No
Urgency: No
KB/JR:jd
SUBJECT
Special Education: Parental Consent
DESCRIPTION
This bill, sponsored by the State Superintendant of Public
Instruction, would conform state special education law to
federal regulations pertaining to revocation of parental consent
for a child with disabilities receiving special education and
related services pursuant to the Individuals with Disabilities
Education Act (IDEA). By making state law consistent with
adopted amendments to IDEA, the state would maintain its funding
eligibility for approximately $1.2 billion annually in federal
grant funding.
BACKGROUND
IDEA is the main federal statute authorizing federal aid for the
education of millions of children with disabilities nationally.
IDEA has two main components: 1) Due process provisions
detailing parental rights; and 2) a permanently authorized grant
program that provides federal funding to the states. States
that receive federal funds are required to provide a "free
appropriate public education (FAPE)" to all children with
disabilities in the "least restrictive environment."
IDEA Part B authorizes the state grant program and stipulates
the conditions for receiving funds. States are required to
provide a FAPE to all students with disabilities which: (1) is
provided at public expense, under public supervision and
direction, without charge; (2) meets the standards of the state
education agency; (3) includes an appropriate preschool,
(more)
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elementary school, or secondary school in the state; and (4) is
provided in conformity with the Individual Education Program
(IEP) established for the child.
In order to maintain California's eligibility for IDEA grant
money, state law must be amended to conform to new regulations
under IDEA. This bill would implement the necessary changes.
This bill was approved by the Senate Committee on Education on
June 16, 2010 by a vote of 6 to 0.
CHANGES TO EXISTING LAW
Existing federal law , pursuant to IDEA, authorizes federal aid
for the purpose of providing education and related services for
children with disabilities. IDEA includes provisions detailing
procedural safeguards protecting parents' rights and a grant
program providing federal funding to states. (20 U.S.C. Sec.
1430 et seq.)
Existing state law defines "consent" as the parent or guardian:
1) being fully informed of all relevant activity; 2)
understanding and agreeing in writing to the carrying out of
activity for which consent is sought; and 3) understanding that
the granting of consent is voluntary, may be revoked at any
time, and that revocation of consent is not retroactive to
negate an action that has occurred after the consent was given
and before the consent was revoked. (Ed. Code Sec. 56021.1.)
Existing state law defines "local education agency (LEA)" as "a
school district, a county office of education, a nonprofit
charter school participating as a member of a special education
local plan area, or a special education local plan area" for
purposes related to special education programs." (Ed. Code Sec.
56026.3.)
Existing state law defines "public agency" as "a school
district, county office of education, special education local
plan area, a nonprofit public charter school that is not
otherwise included as a local educational agency and is not a
school within a local education agency, or any other public
agency under the auspices of the state or any political
subdivisions of the state providing special education or related
services to individuals with exceptional needs" for purposes
related to special education programs. The definition also
includes all public agencies listed in the Code of Federal
Regulations, Title 34, Section 300.33. (Ed. Code Sec. 56028.5.)
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Existing state law requires an LEA that is responsible for
providing a FAPE and related services to a child with
disabilities, to make reasonable efforts to obtain informed
consent from the parent before providing special education and
related services to the child.
Existing state law requires an LEA to file a request for due
process if the parent of a child who is an individual with
exceptional needs refuses services in the IEP after having
consented to those services previously.
This bill would add clarifying language to the definition of
"consent" which provides that a public agency is not required to
amend education records that would remove any reference to the
child obtaining special education and services if the parent or
guardian submits a written revocation of consent.
This bill would require a public agency, as defined in Education
Code Section 56028.5, rather than an LEA, to make reasonable
efforts to obtain informed consent from the parent before
providing special education and related services to the child.
This bill would prohibit a public agency from doing either of
the following if the parent submits a written revocation of his
or her consent, for free appropriate public education and
related services for his or her child with a disability, at any
time after the special education and related services have
started: (1) continue to provide special education and related
services to the child; and (2) use the procedural safeguards,
including mediation and due process complaint procedures, to
obtain agreement or a ruling that the services may be provided
to the child.
This bill would provide that if a parent submits a written
revocation of consent, the public agency would be considered to
be in compliance with the requirement to make a FAPE available
to a child with disabilities when the agency no longer provides
the child with special education and related services.
This bill would specify that a public agency would not be
required to set up an IEP meeting or develop an IEP for the
child if a parent submits a written revocation of consent.
COMMENT
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1. Stated need for the bill
The author writes:
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 U.S. Department of Education could sanction the California
Department of Education, and reduce or withhold federal funds
the state receives for special education services.
This bill would amend ? California's Education Code to bring
it into compliance with recently adopted federal IDEA
regulations. The new regulations stipulate that if a parent
revokes in writing their consent for their IEP, the LEA shall
not continue to provide special education services nor pursue
efforts to require IEP services for the child.
2. Parental consent and due process under the IDEA
The IDEA includes a set of procedural safeguards designed to
protect the rights of children with disabilities and their
families, and to ensure that children with disabilities receive
a FAPE. These procedural safeguards include, among other
things, the opportunity for parents to review their child's full
educational records, full parent participation in identification
and IEP team meetings, and impartial due process hearings.
Federal law and regulations also require parental consent for
initial evaluations, provision of services, and change of
placements, except in specified circumstances where parental
rights have been terminated or the child is a ward of the state.
(20 U.S.C. Sec. 1414; 34 C.F.R. 300.300.)
A public agency must make reasonable efforts to obtain informed
consent from the parent for the initial provision of special
education and related services to the child. If the parent
fails to respond to a request for, or refuses to consent to, the
initial provision of special education and related services, the
public agency is prohibited from requesting a due process
hearing in order to obtain agreement or a ruling that the
services may be provided to the child. (34 C.F.R.
300.00(b)(4).) These provisions of federal law are intended to
ensure that a parent's wishes are honored with respect to the
provision of special education services to their child(ren). A
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public agency is not considered to be in violation of the
requirement to make FAPE available to the child because of the
failure to provide the child with services for which a parent
has refused or failed to provide consent. (Id.) Further, a
public agency is not required to convene an IEP team meeting or
develop an IEP for the child if the parent has refused or failed
to consent. (Id.)
This bill would enact similar provisions to those found in
federal regulations, thereby bringing state law into conformity
with the IDEA. These provisions would ensure that parents'
wishes are honored should they choose to revoke their consent
for continued special education and related services for a child
with disabilities. AB 1841 would also clarify that a public
agency will be deemed to be in compliance with the requirement
to make a FAPE available to a child if the agency ceases to
provide the child with further special education and related
services should the parent revoke consent. Lastly, if the
parent revokes consent, the public agency is not required to
amend the child's education records to remove references of the
child's receipt of special education and related services.
By making state law consistent with the 2008 adopted amendments
to IDEA, this bill would help ensure that the state would retain
its eligibility for federal IDEA grant funding which is more
than $1.2 billion annually.
Support : Association of California School Administrators;
California Association of Joint Powers Authorities; California
School Boards Association; California Teachers Association;
Disability Rights California; Los Angeles County Office of
Education; Special Education Local Plan Area Administrators
Opposition : None Known
HISTORY
Source : State Superintendent of Public Instruction, Jack
O'Connell
Related Pending Legislation : None Known
Prior Legislation :
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AB 1663 (Evans, Chapter 454, Statutes of 2007) made substantive
changes to provisions of law regarding individuals with
exceptional needs and special education and related services to
conform to federal special education regulations.
AB 685 (Karnette, Chapter 56, Statutes of 2007) made technical
changes to various provisions of law regarding individuals with
exceptional needs and special education and related services to
conform to the new federal regulations, updates
cross-references, and makes other clarifying changes.
AB 1662 (Lieber, Chapter 653, Statutes of 2005) made changes to
state special education statutes to bring them into conformity
with federal changes enacted through the 2004 reauthorization of
IDEA.
Prior Vote :
Assembly Education Committee (Ayes 9, Noes 0)
Assembly Floor (Ayes 7, Noes 0)
Senate Education Committee (Ayes 6, Noes 0)
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