BILL NUMBER: AB 1836 CHAPTERED 09/30/94 BILL TEXT CHAPTER 1126 FILED WITH SECRETARY OF STATE SEPTEMBER 30, 1994 APPROVED BY GOVERNOR SEPTEMBER 29, 1994 PASSED THE ASSEMBLY AUGUST 31, 1994 PASSED THE SENATE AUGUST 24, 1994 AMENDED IN SENATE AUGUST 22, 1994 AMENDED IN SENATE JUNE 2, 1994 AMENDED IN SENATE AUGUST 25, 1993 INTRODUCED BY Assembly Member Eastin (Coauthors: Assembly Members Quackenbush and Weggeland) (Coauthor: Senator Presley) MARCH 5, 1993 An act to amend Sections 56000.5, 56001, and 56345 of, and to add Section 56026.2 to, the Education Code, relating to special education, and declaring the urgency thereof, to take effect immediately. LEGISLATIVE COUNSEL'S DIGEST AB 1836, Eastin. Special education: hard-of-hearing or deaf pupils. (1) Existing law expresses the intent of the Legislature that special education programs include certain elements for each individual with exceptional needs, including offering individuals with exceptional needs programs that promote maximum interaction with the general school population. This bill would add to those provisions the intent of the Legislature that those programs for hard-of-hearing or deaf children take into consideration the individual's needs for age and language mode peers and for special education teachers who are proficient in the individual's primary language mode. (2) Existing law makes certain findings and declarations relating to pupils with low-incidence disabilities. This bill would add to those findings and declarations provisions relating to hard-of-hearing or deaf pupils. (3) Existing law requires an individualized education program team to produce a written statement of the individualized education program for each pupil with exceptional needs. The statement must address certain factors and the program must include certain provisions. This bill, in addition, would declare the intent of the Legislature that for hard-of-hearing or deaf pupils the program include a determination of the specific communication needs of the pupil, and make a placement determination that is consistent with those needs, specified federal law and regulations, and specified legislative findings, in accordance with prescribed considerations. The bill would also state that the cost of certain additional responsibilities and services associated with the communication needs of the pupil and the placement determination are to be paid from existing funding sources, as specified, except the General Fund, that training is to be conducted within existing staff development programs, and those training activities are to be consistent with other staff development statutory provisions, as specified. The bill would declare the intent of the Legislature to ensure that state law complies with the requirements of the federal Individuals with Disabilities Education Act. The bill would provide that designated provisions shall be implemented only to the extent that funds are specifically appropriated for that purpose in the annual Budget Act. (4) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement, including the creation of a State Mandates Claims Fund to pay the costs of mandates which do not exceed $1,000,000 statewide and other procedures for claims whose statewide costs exceed $1,000,000. This bill would provide that, if the Commission on State Mandates determines that this bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to those statutory procedures and, if the statewide cost does not exceed $1,000,000, shall be made from the State Mandates Claims Fund. (5) This bill would declare that it is to take effect immediately as an urgency statute. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 56000.5 of the Education Code is amended to read: 56000.5. (a) The Legislature finds and declares that: (1) Pupils with low-incidence disabilities, as a group, make up less than 1 percent of the total statewide enrollment for kindergarten through grade 12. (2) Pupils with low-incidence disabilities require highly specialized services, equipment, and materials. (b) The Legislature further finds and declares that: (1) Deafness involves the most basic of human needs the ability to communicate with other human beings. Many hard-of-hearing and deaf children use an appropriate communication mode, sign language, which may be their primary language, while others express and receive language orally and aurally, with or without visual signs or cues. Still others, typically young hard-of-hearing and deaf children, lack any significant language skills. It is essential for the well-being and growth of hard-of-hearing and deaf children that educational programs recognize the unique nature of deafness and ensure that all hard-of-hearing and deaf children have appropriate, ongoing, and fully accessible educational opportunities. (2) It is essential that hard-of-hearing and deaf children, like all children, have an education in which their unique communication mode is respected, utilized, and developed to an appropriate level of proficiency. (3) It is essential that hard-of-hearing and deaf children have an education in which special education teachers, psychologists, speech therapists, assessors, administrators, and other special education personnel understand the unique nature of deafness and are specifically trained to work with hard-of-hearing and deaf pupils. It is essential that hard-of-hearing and deaf children have an education in which their special education teachers are proficient in the primary language mode of those children. (4) It is essential that hard-of-hearing and deaf children, like all children, have an education with a sufficient number of language mode peers with whom they can communicate directly and who are of the same, or approximately the same, age and ability level. (5) It is essential that hard-of-hearing and deaf children have an education in which their parents and, where appropriate, hard-of-hearing and deaf people are involved in determining the extent, content, and purpose of programs. (6) Hard-of-hearing and deaf children would benefit from an education in which they are exposed to hard-of-hearing and deaf role models. (7) It is essential that hard-of-hearing and deaf children, like all children, have programs in which they have direct and appropriate access to all components of the educational process, including, but not limited to, recess, lunch, and extracurricular social and athletic activities. (8) It is essential that hard-of-hearing and deaf children, like all children, have programs in which their unique vocational needs are provided for, including appropriate research, curricula, programs, staff, and outreach. (9) Each hard-of-hearing and deaf child should have a determination of the least restrictive educational environment that takes into consideration these legislative findings and declarations. (10) Given their unique communication needs, hard-of-hearing and deaf children would benefit from the development and implementation of regional programs for children with low-incidence disabilities. SEC. 2. Section 56001 of the Education Code is amended to read: 56001. It is the intent of the Legislature that special education programs provide all of the following: (a) Each individual with exceptional needs is assured an education appropriate to his or her needs in publicly supported programs through completion of his or her prescribed course of study or until the time that he or she has met proficiency standards prescribed pursuant to Sections 51215 and 51216. (b) By June 30, 1991, early educational opportunities shall be available to all children between the ages of three and five years who require special education and services. (c) Early educational opportunities shall be made available to children younger than three years of age pursuant to Chapter 4.4 (commencing with Section 56425), appropriate sections of this part, and the California Early Intervention Service Act, Title 14 (commencing with Section 95000) of the Government Code. (d) Any child younger than three years, potentially eligible for special education, shall be afforded the protections provided pursuant to the California Early Intervention Services Act, Title 14 (commencing with Section 95000) of the Government Code and Section 1480 of Title 20 of the United States Code and implementing regulations. (e) Each individual with exceptional needs shall have his or her educational goals, objectives, and special education and related services specified in a written individualized education program. (f) Education programs are provided under an approved local plan for special education that sets forth the elements of the programs in accordance with this part. This plan for special education shall be developed cooperatively with input from the community advisory committee and appropriate representation from special and regular teachers and administrators selected by the groups they represent to ensure effective participation and communication. (g) Individuals with exceptional needs are offered special assistance programs that promote maximum interaction with the general school population in a manner that is appropriate to the needs of both, taking into consideration, for hard-of-hearing or deaf children, the individual's needs for a sufficient number of age and language mode peers and for special education teachers who are proficient in the individual's primary language mode. (h) Pupils be transferred out of special education programs when special education services are no longer needed. (i) The unnecessary use of labels is avoided in providing special education and related services for individuals with exceptional needs. (j) Procedures and materials for assessment and placement of individuals with exceptional needs shall be selected and administered so as not to be racially, culturally, or sexually discriminatory. No single assessment instrument shall be the sole criterion for determining placement of a pupil. The procedures and materials for assessment and placement shall be in the individual's mode of communication. Procedures and materials for use with pupils of limited English proficiency, as defined in subdivision (m) of Section 52163, shall be in the individual's primary language. All assessment materials and procedures shall be selected and administered pursuant to Section 56320. (k) Educational programs are coordinated with other public and private agencies, including preschools, child development programs, nonpublic nonsectarian schools, regional occupational centers and programs, and postsecondary and adult programs for individuals with exceptional needs. (l) Psychological and health services for individuals with exceptional needs shall be available to each schoolsite. (m) Continuous evaluation of the effectiveness of these special education programs by the school district, special education local plan area, or county office shall be made to ensure the highest quality educational offerings. (n) Appropriate qualified staff are employed, consistent with credentialing requirements, to fulfill the responsibilities of the local plan and positive efforts are made to employ qualified handicapped individuals. (o) Regular and special education personnel are adequately prepared to provide educational instruction and services to individuals with exceptional needs. (p) This section shall remain in effect only until California terminates its participation in special education programs for individuals with exceptional needs between the ages of three and five years, pursuant to Section 56448, and as of that date is repealed. SEC. 2.5. Section 56001 of the Education Code is amended to read: 56001. It is the intent of the Legislature that special education programs provide all of the following: (a) Each individual with exceptional needs is assured an education appropriate to his or her needs in publicly supported programs through completion of his or her prescribed course of study or until the time that he or she has met proficiency standards prescribed pursuant to Sections 51215 and 51216. (b) Early educational opportunities are available to all children between the ages of three and four years and nine months who require intensive special education and services. (c) Early educational opportunities shall be made available to children younger than three years of age pursuant to Chapter 4.4 (commencing with Section 56425), appropriate sections of this part, and the California Early Intervention Service Act, Title 14 (commencing with Section 95000) of the Government Code. (d) Any child younger than three years, potentially eligible for special education shall be afforded the protections provided pursuant to the California Early Intervention Services Act, Title 14 (commencing with Section 95000) of the Government Code and Section 1480 of Title 20 of the United States Code and implementing regulations. (e) Each individual with exceptional needs shall have his or her educational goals, objectives, and special education and related services specified in a written individualized education program. (f) Education programs are provided under an approved local plan for special education that sets forth the elements of the programs in accordance with the provisions of this part. This plan for special education shall be developed cooperatively with input from the community advisory committee and appropriate representation from special and regular teachers and administrators selected by the groups they represent to ensure effective participation and communication. (g) Individuals with exceptional needs are offered special assistance programs that promote maximum interaction with the general school population in a manner which is appropriate to the needs of both, taking into consideration, for hard-of-hearing or deaf children, the individual's needs for a sufficient number of age and language mode peers and for special education teachers who are proficient in the individual's primary language mode. (h) Pupils be transferred out of special education programs when special education services are no longer needed. (i) The unnecessary use of labels is avoided in providing special education and related services for individuals with exceptional needs. (j) Procedures and materials for assessment and placement of individuals with exceptional needs shall be selected and administered so as not to be racially, culturally, or sexually discriminatory. No single assessment instrument shall be the sole criterion for determining placement of a pupil. The procedures and materials for assessment and placement shall be in the individual's mode of communication. Procedures and materials for use with pupils of limited-English proficiency as defined in subdivision (m) of Section 52163, shall be in the individual's primary language. All assessment materials and procedures shall be selected and administered pursuant to Section 56320. (k) Educational programs are coordinated with other public and private agencies, including preschools, child development programs, nonpublic, nonsectarian schools, regional occupational centers and programs, and postsecondary and adult programs for individuals with exceptional needs. (l) Psychological and health services for individuals with exceptional needs shall be available to each schoolsite. (m) Continuous evaluation of the effectiveness of these special education programs by the school district, special education local plan area, or county office shall be made to ensure the highest quality educational offerings. (n) Appropriate qualified staff are employed, consistent with credentialing requirements, to fulfill the responsibilities of the local plan and positive efforts are made to employ qualified handicapped individuals. (o) Regular and special education personnel are adequately prepared to provide educational instruction and services to individuals with exceptional needs. (p) This section shall become operative on the date that California terminates its participation in special education programs for individuals with exceptional needs between the ages of three and five years, pursuant to Section 56448. SEC. 3. Section 56026.2 is added to the Education Code, to read: 56026.2. "Language mode" means the method of communication used by hard-of-hearing and deaf children that may include the use of sign language to send or receive messages or the use of spoken language, with or without visual signs or cues. SEC. 4. Section 56345 of the Education Code is amended to read: 56345. (a) The individualized education program is a written statement determined in a meeting of the individualized education program team and shall include, but not be limited to, all of the following: (1) The present levels of the pupil's educational performance. (2) The annual goals, including short-term instructional objectives. (3) The specific special educational instruction and related services required by the pupil. (4) The extent to which the pupil will be able to participate in regular educational programs. (5) The projected date for initiation and the anticipated duration of the programs and services included in the individualized education program. (6) Appropriate objective criteria, evaluation procedures, and schedules for determining, on at least an annual basis, whether the short-term instructional objectives are being achieved. (b) When appropriate, the individualized education program shall also include, but not be limited to, all of the following: (1) Prevocational career education for pupils in kindergarten and grades 1 to 6, inclusive, or pupils of comparable chronological age. (2) Vocational education, career education or work experience education, or any combination thereof, in preparation for remunerative employment, including independent living skill training for pupils in grades 7 to 12, inclusive, or comparable chronological age, who require differential proficiency standards pursuant to Section 51215. (3) For pupils in grades 7 to 12, inclusive, any alternative means and modes necessary for the pupil to complete the district' s prescribed course of study and to meet or exceed proficiency standards for graduation in accordance with Section 51215. (4) For individuals whose primary language is other than English, linguistically appropriate goals, objectives, programs and services. (5) Extended school year services when needed, as determined by the individualized education program team. (6) Provision for the transition into the regular class program if the pupil is to be transferred from a special class or center, or nonpublic, nonsectarian school into a regular class in a public school for any part of the schoolday, including the following: (A) A description of activities provided to integrate the pupil into the regular education program. The description shall indicate the nature of each activity, and the time spent on the activity each day or week. (B) A description of the activities provided to support the transition of pupils from the special education program into the regular education program. (7) For pupils with low-incidence disabilities, specialized services, materials, and equipment, consistent with guidelines established pursuant to Section 56136. (c) It is the intent of the Legislature in requiring individualized education programs that the district, special education local plan area, or county office is responsible for providing the services delineated in the individualized education program. However, the Legislature recognizes that some pupils may not meet or exceed the growth projected in the annual goals and objectives of the pupil's individualized education program. (d) Pursuant to subdivision (d) of Section 51215, a pupil's individualized education program shall also include the determination of the individualized education program team as to whether differential proficiency standards shall be developed for the pupil. If differential proficiency standards are to be developed, the individualized education program shall include these standards. (e) Consistent with Section 56000.5, it is the intent of the Legislature that, in making a determination of what constitutes an appropriate education to meet the unique needs of a deaf or hard-of-hearing pupil in the least restrictive environment, the individualized education program team shall consider the related services and program options that provide the pupil with an equal opportunity for communication access. The individualized education program team shall specifically discuss the communication needs of the pupil, consistent with the guidelines adopted pursuant to Section 56136 and Page 49274 of Volume 57 of the Federal Register, including all of the following: (1) The pupil's primary language mode and language, which may include the use of spoken language with or without visual cues, or the use of sign language, or a combination of both. (2) The availability of a sufficient number of age, cognitive, and language peers of similar abilities which may be met by consolidating services into a local plan areawide program or providing placement pursuant to Section 56361. (3) Appropriate, direct, and ongoing language access to special education teachers and other specialists who are proficient in the pupil's primary language mode and language consistent with existing law regarding teacher training requirements. (4) Services necessary to ensure communication-accessible academic instructions, school services, and extracurricular activities consistent with the Vocational Rehabilitation Act of 1973 as set forth in Section 794 of Title 29 of the United States Code and the Americans with Disabilities Act of 1990 as set forth in Section 12000 and following of Title 42 of the United States Code. (f) No General Fund money made available to school districts or local agencies may be used for any additional responsibilities and services associated with paragraphs (1) and (2) of subdivision (e), including the training of special education teachers and other specialists, even if those additional responsibilities or services are required pursuant to a judicial or state agency determination. Those responsibilities and services shall only be funded by a local educational agency as follows: (1) The costs of those activities shall be funded from existing programs and funding sources. (2) Those activities shall be supported by the resources otherwise made available to those programs. (3) Those activities shall be consistent with the provisions of Sections 56240 to 56243, inclusive. (g) It is the intent of the Legislature that the communication skills of teachers who work with hard-of-hearing and deaf children be improved, however, nothing in this section shall be construed to remove the local educational agency's discretionary authority in regard to in-service activities. SEC. 5. By amending Sections 56000.5, 56001, and 56345 of the Education Code by Sections 1, 2, 2.5, and 4 of this act, and by adding Section 56026.2 to the Education Code by Section 3, it is the intent of the Legislature to ensure that state law complies with the requirements of federal law under the Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400 et seq.). SEC. 6. The changes made to Section 56000.5, 56001, and 56345 of the Education Code by Sections 1, 2, 2.5, and 4 and the provisions of Section 56026.2, as added to the Education Code by Section 3, shall be implemented only to the extent that funds are specifically appropriated for that purpose in the annual Budget Act. Notwithstanding Section 17610 of the Government Code, if the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code. If the statewide cost of the claim for reimbursement does not exceed one million dollars ($1,000,000), reimbursement shall be made from the State Mandates Claims Fund. Notwithstanding Section 17580 of the Government Code, unless otherwise specified in this act, the provisions of this act shall become operative on the same date that the act takes effect pursuant to the California Constitution. SEC. 7. This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are: In order to ensure that all pupils have an education that they can understand provided to them in a setting in which they communicate, which is an essential aspect of education in this state, it is necessary that this act take effect immediately.