BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                       AB 2785|
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                                   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:









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          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  







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            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:








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             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.







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                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:








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             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 







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          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  







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            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  







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               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.  







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             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







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          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  ****