BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 2785| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 2785 Author: O'Donnell (D) Amended: 8/1/16 in Senate Vote: 21 SENATE EDUCATION COMMITTEE: 9-0, 6/22/16 AYES: Liu, Block, Hancock, Huff, Leyva, Mendoza, Monning, Pan, Vidak SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/11/16 AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen ASSEMBLY FLOOR: 80-0, 5/31/16 - See last page for vote SUBJECT: Special education: English learners: manual SOURCE: Author DIGEST: This bill requires, by July 1, 2018, the California Department of Education (CDE) to develop a manual for the purpose of providing guidance to local educational agencies (LEA) on identifying, assessing, supporting and reclassifying English learners who may qualify for special education services and students with disabilities who may be classified as English learners. ANALYSIS: Existing law: AB 2785 Page 2 1)Requires LEAs to actively and systematically seek out all individuals with exceptional needs, from birth to 21 years of age. (Education code § 56300) 2)Requires the determination of a student's primary language upon enrollment and assessment of the language skills of all students whose primary language is other than English. (EC § 52164.1) 3)Requires, under federal law, that an individualized education program (IEP) team, in the case of an English learner, consider the language needs of the student as such needs relate to his or her IEP. (34, CFR § 300.346) 4)Requires LEAs to take any action necessary to ensure that, in an IEP team meeting, the parent or guardian understands the proceeding, including arranging for an interpreter for parents or guardians with deafness or whose native language is a language other than English. (EC § 56341.5) 5)Requires proposed special education assessment plans to 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. (EC § 56321) 6)Requires LEAs to give the parent or guardian a copy of the IEP, at no cost to the parent or guardian. (EC § 56341.5) 7)Defines "consent" in special education proceedings to include 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. (EC § 56021.1) 8)Prohibits, through federal law, a determination that a student is eligible for special education if the determining factor is AB 2785 Page 3 limited English proficiency. (34, CFR §300.309) 9)Requires, through federal law, the California Department of Education (CDE) to report annually to the federal government on the number of students with disabilities, including the number who have disabilities, and the incidence and duration of disciplinary actions by race, ethnicity, and limited English proficiency status. (34, CFR § 300.600) This bill: 1)Requires CDE to develop a manual for the purpose of providing guidance to LEAs on identifying, assessing, supporting and reclassifying English learners who may qualify for special education services and students with disabilities who may be classified as English learners. 2)Specifies that the goal is to provide guidance for voluntary use by LEAs on evidence-based and promising practices for the identification, assessment, support and reclassification of these students and to promote collaboration as specified, in determining the most appropriate academic placements and services for these students. 3)Requires CDE to do all of the following in the development of the manual: a) Review manuals and other resources provided on this topic by the specified public entities and organizations. b) Establish and consult with stakeholder groups, comprised of experts and practitioners in either special education, English learner education, or in both. 4)Requires the manual to include all of the following topics: AB 2785 Page 4 a) Guidance for accurately identifying English learners who may have disabilities and accurately classifying students with disabilities as English learners, including on avoiding overidentification and underidentification of these students for special education services and in different disability categories and in different grade spans. b) Information on second language acquisition and progress, including guidance on distinguishing between language acquisition and disabilities. c) Information on the role of culture and acculturation, to the extent it is related to the process of identifying English learner reclassification process for English learners with disabilities. d) Examples of pre-referral strategies, early interventions, and early intervening strategies specifically addressing the needs of English learners, as specified. e) Examples of any plans or processes used by LEAs for continuous evaluation and systemic review and guidance on sharing information between special education and English learner programs within LEAs for the purpose of tracking effectiveness, to the extent permitted under state and federal law. f) Guidance on all of the following areas: i) Referral processes and use of assessments. ii) Consideration of extrinsic factors, such as vision, hearing and health, in the identification of students. AB 2785 Page 5 iii) Development of IEPs for English learners. iv) How to support the language and content learning needs of English learners who may have disabilities. v) Placement or continued placement in bilingual programs and on providing services and instruction in primary languages. vi) Special education exit and English learner reclassification process for English learners with disabilities. vii) Working with families including meeting the needs of nonnative English speaking parents, guardians, and educational rights holders in special education proceedings. g) State and federal law, regulations, and guidance related to the rights of English learners and students with disabilities. 5)Requires that the manual be: a) Consistent with state and federal law, regulations, and guidance regarding English learners and special education. b) Written for ease of use by educators. The department is encouraged to incorporate features such as flowcharts, checklists, sample forms and case examples. 6)Requires the CDE to: AB 2785 Page 6 a) Post the manual on its Internet Web site and on its professional development Internet Web site. b) Develop a plan with input from the stakeholder group, for dissemination of the manual and providing professional development for staff at schoolsites and administrators of LEAs on the content of the manual, as specified. Implementation of the plan is contingent upon funding provided in the annual Budget Act for that purpose. 7)Requires that the plan be submitted to the State Board of Education, the Department of Finance, the Legislative Analyst's Office, the California Collaborative for Educational Excellence, the Advisory Commission on Special Education, and the appropriate policy and fiscal committees of the Legislature on or before July 1, 2018. 8)Defines, for the purpose of this bill, the following terms: a) "English learners" includes pupils who have been classified as English learners and those who may later be classified as English learners. b) "Pupils with disabilities" includes pupils who have been or may be identified as individuals with exceptional needs, as defined in section 56026 of the Education Code, including pupils who have been or may be identified as having a low incidence disability, as defined in section 56020.5, or a severe disability, as defined in Section 56030.5 and also includes students with disabilities who may be later classified as English learners. 9)States the intent of the Legislature that these activities be paid for with federal funds. Comments AB 2785 Page 7 1)Need for the bill. According to the author, "the inappropriate identification of English learners for special education services is a long-standing problem, with serious consequences for student learning. Research indicates that this problem, first identified in the 1960's, persists today. Students may mistakenly be identified as requiring special education services when their language proficiency is mistaken for a disability. Conversely, English learners may be prevented from receiving needed special education services when disabilities are mistaken for language learning needs." This bill seeks to promote accurate identification of English learners who may qualify for special education services by requiring the CDE to provide evidence based guidance to educators in the form of a manual. 2)Identifying English learners for special education services at a higher rate. According to the CDE, while 10% of California students qualify for special education services, 9.1% of English proficient students and 14.4% of English learners qualify for these services. This shows that English learners are identified for special education services at a higher rate than for non-English learners. Compared to other states, California has an above average percentage of English learners in special education and 35% of all English learners in special education in the country. The identification, assessment and instruction of English learners who may qualify for special education services is a complex process and inappropriate placements may cause a spike in rates. This bill seeks to assist educators to distinguish between language acquisition and disability. Part of the strategy to help educators improve in this area is sharing information on pre-referral and early intervention strategies; a process for continuous evaluation and systemic review; as well as providing information on the role of culture and acculturation in the process of identifying English learner reclassification for English learners with disabilities. 3)Related research. This bill implements recommendations from multiple reports on English learners and special education identification. It primarily draws from two reports issued in AB 2785 Page 8 2015, Identifying and Supporting English Learner Students with Learning Disabilities: Key Issues in the Literature and State Practice, by the Regional Educational Laboratory West (WestEd) and Improving the Opportunities and Outcomes of California's Student Learning English released by Policy Analysis for California Education. The following are key issues raised by these reports that are related to the provisions of this bill: a) Inability to distinguish between a language learning need and a disability. Educators often face challenges determining whether a student's difficulty progressing academically is a result of a disability or a language barrier. For example, in the area of English language arts, teachers may confuse the signs of learning disabilities with the development of pronunciation, syntax, or semantic development. Educators may also be hesitant to refer a student with a possibility disability until their English proficiency improves. This is a key factor in both the over identification and under identification of English learners for special education services. b) Insufficient use of assessment accommodations. Assessment accommodations, such as primary language support, English language reference materials, and the option for oral response in English are a few of the ways in which educators can get more accurate picture of English learners' abilities. Overreliance on standardized tests for English learners with disabilities results in under-identification in the early elementary grades and over-identification in subsequent grades. c) Poorly designed and implemented referral strategies. Poorly designed referral strategies are a major barrier for accurate identification and designating appropriate services. A systematic referral process is needed. This process would allow educators to know when and under which circumstances to refer, establish protocols for review of multiple factors and create a process for interpretation and translation for parents in special education proceedings. Referral teams should include English learner AB 2785 Page 9 specialist and special education specialist who are trained to assess English learner students. d) Lack of intervention strategies. Early intervention can reduce referrals for special education services and strategies such as response to intervention are increasingly employed by schools. Some schools also use pre-referral strategies such as a child study team to make instructional modifications and provide supports before a student is referred for assessment. e) Inappropriate instructional practices. English learners with disabilities require specialized instruction in order to progress academically both prior to referral and after qualifying for services. However, educators have difficulty providing consistent, adequate services to English learners with disabilities, in part due to gaps in skills required to meet both sets of needs. The guidance manual established by the provisions of this bill aims to address each of these points by incorporating the wide array of resources produced on this topic, bringing together a stakeholder group comprised of experts in both special education and English learner education to guide educators in appropriately addressing the needs of this unique student population. FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: No According to the Senate Appropriations Committee: Contract for manual: CDE indicates that it would contract for the development of the manual for such activities as subcontracting with experts, compiling and analyzing resources from other states, conducting stakeholder meetings, printing necessary materials, filming stakeholder meetings, and travel. AB 2785 Page 10 The total amount of the contract is anticipated to be $450,000 to cover the period from January 1, 2017 to July 1, 2018. (Federal funds) Contract monitoring: In addition, the CDE cites the need for one limited-term position until July 1, 2018 at a cost of $229,000 to oversee the contract and to act as the liaison with the English Learners Division within the department. (Federal funds) Manual Implementation: This bill requires the state and LEAs to collaborate in meeting the objectives of disseminating the manual and providing professional development on its contents. This creates a cost pressure to implement this plan which the CDE indicates would result in ongoing costs of $154,000 for one position to provide training and technical assistance to LEAs. However, Senate Appropriations staff notes that the need for this activity is likely to diminish over time. In addition, this creates a local and state cost pressure to fund professional development and other activities necessary to implement the guidance in the manual. Staff notes that the bill makes implementation of that guidance contingent upon funding provided for that purpose. The CDE indicates that one-time and ongoing federal special education carryover funds would be available to support its activities required by this bill. This would require approval through the annual budget process to ensure the availability of funds and a subsequent increase the CDE's federal fund spending authority. SUPPORT: (Verified8/11/16) State Superintendent of Public Instruction Tom Torlakson California Association for Bilingual Education California Immigrant Policy Center California State PTA AB 2785 Page 11 California Teachers Association Californians Together Los Angeles Unified School District Riverside County Superintendent of Schools Santa Clara County Office of Education Special Education Local Plan Area Administrators of California The Arc and United Cerebral Palsy California Collaboration The Education Trust-West The State Council on Developmental Disabilities OPPOSITION: (Verified 8/11/16) None received ASSEMBLY FLOOR: 80-0, 5/31/16 AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon Prepared by:Olgalilia Ramirez / ED. / (916) 651-4105 8/15/16 20:30:05 **** END ****