BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2091


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          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. 











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          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  








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            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.










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          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  








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          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  








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          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:









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              "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.  








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           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  








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               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  








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          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  








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          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.  








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            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












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          Analysis Prepared by:Tanya Lieberman / ED. / (916) 319-2087