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)Requires, in regulations, LEAs to give a parent or guardian a
copy of a student's IEP in his or her primary language at his
or her request.
4)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.
5)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,
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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.
6)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."
7)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
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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
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."
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
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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.
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
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Iowa: standard IEP form in 6 languages
New York: all forms available in 5 languages
Colorado, Rhode Island, Illinois, Utah, Texas: forms
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
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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
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?
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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
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
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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.
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
AB 2091
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None received
Analysis Prepared by:Tanya Lieberman / ED. / (916) 319-2087