BILL ANALYSIS Ó AB 2091 Page 1 Date of Hearing: April 6, 2016 ASSEMBLY COMMITTEE ON EDUCATION Patrick O'Donnell, Chair AB 2091 (Lopez) - As Amended March 28, 2016 SUBJECT: Special education: individualized education programs: translation services SUMMARY: Requires that local educational agencies (LEAs) provide parents with translated copies of a student's individualized education program (IEP) and related documents within 30 days of an IEP meeting, and requires that the documents be translated by a qualified interpreter. Specifically, this bill: 1)Requires that, if it is necessary to ensure that a parent or guardian understands the proceedings at an IEP meeting, LEAs arrange for translation services, as specified below. 2)Requires LEAs to provide a student's parent, guardian, or educational rights holder with a translated copy of the student's completed IEP and any revisions to it in the parent's, guardian's, or educational rights holder's primary language within 30 days of an IEP team meeting. AB 2091 Page 2 3)Requires LEAs to provide a student's parent, guardian, or educational rights holder with a translated copy of any document discussed at an IEP team meeting, in the parent's, guardian's, or educational rights holder's primary language within 30 days of the IEP team meeting. 4)Requires LEAs to make available translated copies of any special education standardized forms or other standardized information that the LEA maintains on each schoolsite. 5)Requires LEAs to make the translated documents and information available for each primary language spoken by 15% or more of the student population at any school site. 6)Required these documents to be translated by a qualified interpreter who is proficient in both the English language and the primary language used. 7)Defines a "qualified interpreter" for purposes of the act to mean an interpreter who has met the testing or certification standards for outside or contract interpreters, is proficient in the ability to communicate commonly used terms and ideas between the English language and the primary language, and has knowledge of basic interpreter practices, including, but not limited to, confidentiality, neutrality, accuracy, completeness, and transparency. 8)States that nothing in the amended section is intended to affect any other state or federal law requirement regarding AB 2091 Page 3 the translation of education-related documents. EXISTING LAW: 1)Requires LEAs to take any action necessary to ensure that in an IEP team meeting the parent or guardian understands the proceedings at a meeting, including arranging for an interpreter for parents or guardians with deafness or whose native language is a language other than English. 2)Requires LEAs to give the parent or guardian a copy of the individualized education program, at no cost to the parent or guardian. 3)Defines "consent" in special education proceedings as situations in which the parent or guardian has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or other mode of communication. 4)Requires that, if 15 percent or more of the students enrolled in a public school that provides instruction in kindergarten or any of grades 1 to 12, inclusive, speak a single primary language other than English, all notices, reports, statements, or records sent to the parent or guardian of any such student by the school or school district shall, in addition to being written in English, be written in the primary language, and may be responded to either in English or the primary language. AB 2091 Page 4 5)Requires that proposed assessment plans be provided to parents "in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so." 6)Title VI of the federal Civil Rights Act of 1964 prohibits recipients of federal financial assistance, including school districts, from discriminating on the basis of race, color, or national origin. Title VI's prohibition on national origin discrimination requires school districts to take "affirmative steps" to address language barriers so that EL students may participate meaningfully in schools' educational programs. FISCAL EFFECT: This bill has been keyed a state mandated local program by the Office of Legislative Counsel. COMMENTS: Need for the bill. The author's office states, "The IEP process can be very overwhelming and intimating for someone who is not familiar with the process or terminology, especially if that person's primary language is not English. Although verbal interpreters are made available to parents, guardians, or educational right holders during IEP meetings, some terms in documents or processes may be lost in translation?The problem occurs when the LEA does not provide a translated IEP in a timely manner or at all, and when a translated IEP is provided the document has not been translated accurately." Up to 43% of public school students in California have parents AB 2091 Page 5 whose primary language is not English. According to the CDE, 2.7 million students speak a language other than English in their homes. This can be interpreted to mean that up to 43% of the parents of public school students speak a language other than English as their primary language. The CDE collects data on 60 languages spoken by the state's public school students, but 94% speak one of the top ten languages in the state. Spanish is by far the most widely-used primary language, spoken by 84% of all English learners. Also according to the CDE, about 14% of California's English learners qualify for special education, and likely many more students with disabilities who are not classified as English learners have parents whose primary language is not English. History of federal compliance issues around interpretation and translation in special education proceedings. A joint letter from the U.S. Department of Education and the U.S. Department of Justice dated January 7, 2015 highlighted a number of compliance problems related to English learners and rights established by under Title VI of the Civil Rights Act of 1964. The departments noted a history of compliance problems around "fail[ure] to provide translation or an interpreter at IEP meetings." Law requires "any action necessary" to ensure parents understand proceedings? Both state and federal law require LEAs to "take any action necessary" to ensure that parents understand the proceedings at an IEP team meeting, and cite the use of interpreters as one measure that may be necessary to meet this requirement. Translation of documents (which is distinct from interpretation) is not specifically mentioned but is clearly implied. State and federal law also define parental "consent" in special AB 2091 Page 6 education proceedings as given when "the parent or guardian has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or other mode of communication." Translation of documents is not specifically mentioned, but again is implied. ?but is "spotty" where translation is specifically required. Federal law does not specifically require that IEP documents be translated, but it does require LEAs to provide translation in two specific circumstances: proposed assessment plans must be provided to parents "in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so." written notice of due process rights of students and parents must be "in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so." Federal guidance confirms that IDEA does not specifically require translation of IEP documents. In a letter dated September 4, 2007, the federal Office of Special Education and Rehabilitative Services (OSEP) of the U.S. Department of Education provided informal guidance on the question of whether IEP documents are required to be translated. OSEP states that this guidance is not legally binding, but represents an interpretation by the U.S. Department of Education of the IDEA in the context of the specific facts presented. On this question OSEP stated, in relevant part: AB 2091 Page 7 "There is no requirement in IDEA or in its accompanying regulations that all IEP documents must be translated. The statute and its accompanying regulations, however, do contain a number of provisions relevant to the IEP process and translations. Under IDEA, consent means 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 other mode of communication. The parent must understand, and agree in writing, to the carrying out of the activity for which his or her consent is sought?The public agency must take whatever action is necessary to ensure that the parent understands the proceedings of the IEP Team meeting, including arranging for an interpreter for parents with deafness or whose native language is other than English." This guidance states that "states and school districts may establish specific procedures designed to ensure that school districts can demonstrate that parents have been "fully informed" before providing consent," and that "providing the parents with written translations of the IEP documents may be one way for a school district to demonstrate that the parent has been fully informed of their child's educational program." CDE maintains a Clearinghouse for Multilingual Documents, but it does not contain special education forms. The CDE maintains a Clearinghouse for Multilingual Documents, an online resource that helps LEAs find pre-existing, locally-created translations of parental notification documents. Registered users are provided free access to numerous translated documents that other LEAs are willing to make available. LEAs may find translations, review them, and revise them to suit local needs. The Clearinghouse was created to help LEAs meet notification requirements in state and federal laws, such as the state law requiring that school communication be translated under specific circumstances, and to help reduce redundant translation efforts. AB 2091 Page 8 The database grows as LEAs voluntarily contribute to it. According to the CDE, this database of multilingual documents contains some documents that would inform IEP development, but that as this project is a Title III service (federal English learner statute) and the IEP is not a Title III obligation, it does not include special education forms. Other states with far fewer English learners have translated forms on department of education websites; California does not. This bill requires that school districts maintain translated forms of all standardized special education forms. Other state departments of education (including a number with a far smaller population of non-native English speakers) share such translated forms in various languages through their websites: Massachusetts: all forms available in 16 languages Minnesota: several forms available in 10 languages Oregon: standard IEP form available in 4 languages Washington: all forms available 7 languages Iowa: standard IEP form in 6 languages New York: all forms available in 5 languages Colorado, Rhode Island, Illinois, Utah, Texas: forms AB 2091 Page 9 available in 1-3 languages California, which has the largest population of English learners in the country (and one in three English learners nationally), does not maintain such translated forms (apart from a notice of procedural safeguards, which is translated into four languages). Such a resource would make it easier for LEAs to meet the requirements of both this bill and of other provisions of state and federal law, and ensure that translations are of sufficient quality. Staff recommends that this bill be amended to require the CDE, by January 1, 2018, to post on its website all standard special education forms translated in, at a minimum, the top ten primary languages of the state's students. The amendment would also state that the CDE is encouraged to review translations created by other states for this purpose, and is encouraged to include, in a means such as smaller type, an English translation on those standard forms, in order to minimize the risk of error when school personnel not fluent in the parent's language fill out the forms. Translation into ten languages would address the language needs of 94% of the population of parents who might need translation services. Clearly, LEAs would still have to fill in these forms with the additional translated information (such as any narrative) for each student, but having access to state translated forms would reduce inefficiencies, make translation of documents more likely to occur, and ensure that the translations are of sufficient quality. This bill requires LEAs to make available translated copies of any special education standardized forms that are maintained at a school site, and requires that this be done for languages spoken by 15% or more of students at each school. Staff notes AB 2091 Page 10 that this could be interpreted to imply that it is not necessary to translate documents in other languages for each individual, even though state and federal law are clear that this is required if it is necessary to ensure that the parents understand the document. If the above recommendation that the translated forms be provided on the CDE website, this provision is not necessary. Staff recommends that the bill be amended to delete these provisions. Balancing the rights of parents to a document they can understand with the potential for a delay in services. This introduced version of this bill required that a parent be provided a translated copy of the IEP prior to giving consent. Due to concerns that this approach might cause delays in services, this was changed to a requirement that the translation be provided within 30 days of the IEP team meeting. The Committee may wish to consider what the 30 day translation requirement might mean for both parents' rights and the prompt delivery of services. Does it mean that an English speaking parent is entitled to a copy of the IEP in a language that she understands at the IEP team meeting, but a non-English speaking parent must wait for up to 30 days after the meeting for a translation? Does this bill imply that the practice of parents signing IEPs before they receive necessary translated copies is acceptable? To clarify that the translation requirement in this bill does not lessen any responsibility of LEAs to provide translations when it is needed so that parents can give informed consent, staff recommends that this bill be amended to add a statement that the bill shall not be construed to abridge any rights of parents under state and federal law, including the giving of AB 2091 Page 11 consent, as defined, and state that parents have the right to not consent to part or all of an IEP prior to receiving a translated copy of the IEP. Interpreters vs. translators. This bill requires that translation of the specified documents be performed by a qualified interpreter, as defined. The terms "interpretation" and "translation are frequently conflated. Interpretation refers to spoken or signed language, while translation concerns written text. Staff recommends that this bill be amended to change "interpreter" to "translator" in the section placing requirements on the individuals translating documents, and make conforming changes. Concerns regarding web-based translation of special education documents. In a joint letter from the U.S. Department of Education and the U.S. Department of Justice dated January 7, 2015, the departments raised several issues with regard to the use of web-based translation of special education documents: "Some school districts have used web-based automated translation to translate documents. Utilization of such services is appropriate only if the translated document accurately conveys the meaning of the source document, including accurately translating technical vocabulary. The Departments caution against the use of web-based automated translations; translations that are inaccurate are inconsistent with the school district's obligation to communicate effectively with LEP parents. Thus, to ensure that essential information has been accurately translated and conveys the meaning of the source document, the school district would need to have a machine translation reviewed, and edited as needed, by an individual qualified to do so. Additionally, the confidentiality of documents may be lost when documents are uploaded without sufficient controls to a web-based translation service and stored in their databases. AB 2091 Page 12 School districts using any web-based automated translation services for documents containing personally identifiable information from a student's education record must ensure that disclosure to the web-based service complies with the requirements of the Family Educational Rights and Privacy Act." REGISTERED SUPPORT / OPPOSITION: Support California Immigrant Policy Center Disability Rights California Disability Rights Education and Defense Fund State Council on Developmental Disabilities Opposition None received AB 2091 Page 13 Analysis Prepared by:Tanya Lieberman / ED. / (916) 319-2087