BILL ANALYSIS
AB 661
Page 1
Date of Hearing: April 15, 2009
ASSEMBLY COMMITTEE ON EDUCATION
Julia Brownley, Chair
AB 661 (Torlakson) - As Introduced: February 25, 2009
SUBJECT : Special education: behavioral intervention plans:
mandate claim: funding
SUMMARY : Requires the Superintendent of Public Instruction
(SPI) to revise the special education funding model to provide
for a permanent increase in funding and appropriates specified
amounts from the General Fund for this and other purposes, as
stipulated in a pending mandate claim settlement agreement.
Specifically, this bill, an urgency measure :
1)States that the Legislature finds and declares that it is in
the state's interest that this bill be enacted immediately to
provide funding for positive behavioral intervention plans
(BIPs) for special education pupils pursuant to existing law
in order to resolve a contested state mandate issue.
2)Requires the SPI to perform specified calculations to
permanently increase the amount of funding per unit of average
daily attendance (ADA) for each special education local plan
area (SELPA), and appropriates $65 million from the General
Fund in augmentation of an item of the Budget Act of 2009 for
this purpose.
3)Appropriates $10 million from the General Fund to the SPI for
allocation on a one-time basis to county offices of education
(COEs) and SELPAs, as follows:
a) $1.5 million to COEs based on December, 2007 county
special education pupil count, and requires each COE to
receive at least $5000;
b) $6 million to SELPAs based on December, 2007 special
education pupil count, and requires each SELPA to receive
at least $10,000; and
c) $2.5 million to the San Joaquin COE.
4)Requires that $85 million be appropriated from the General
Fund on a one-time basis in each of the 2011-12 to 2016-17
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fiscal years, inclusive, to the SPI for allocation to school
districts on a per-pupil basis, and requires the SPI to use
specified calculations to compute the allocation for each
school district.
5)Allows the state to appropriate and allocate amounts in excess
of $85 million annually in any of the six years, as stated
above, for the purpose of discharging the obligation in
advance of the period, so long as the total amount
appropriated and allocated during that time period is $510
million.
6)Stipulates that in any fiscal year, commencing with the
2012-13 fiscal year, in which the amount of the minimum
funding guarantee for the support of school districts and
community college districts is determined by Test 3 of
Proposition 98, the annual appropriation of $85 million, noted
in #4 above, shall not be made.
7)Deems the funding provided pursuant to the provisions of this
bill as payments in full satisfaction of, and in lieu of, any
reimbursable mandate claims resulting from the statement of
decision of the Commission on State Mandates (CSM) regarding
the BIP mandated cost test claim and states that by providing
this funding the state does not concede the existence of any
unfunded reimbursable mandate with regard to BIP provisions
and regulations.
8)States that funds provided pursuant to the provisions of this
bill shall be used exclusively for special education services
and, as a first priority, for BIP services but not any special
education programs and services resulting from amendments to
special education statutes and regulations enacted after July
1, 2008.
EXISTING LAW :
1)Requires the SPI to develop, and the State Board of Education
(SBE) to adopt, regulations governing the use of behavioral
interventions for individuals with exceptional needs receiving
special education and related services, as specified.
2)Prescribes the calculations to be made to determine the amount
of General Fund moneys to allocate to each SELPA.
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FISCAL EFFECT : Unknown
COMMENTS : The federal Individuals with Disabilities Education
Act (IDEA) grants pupils with disabilities the right to a free
and appropriate public education in the least restrictive
environment. Districts are required to deliver special
education and related services to a pupil with disabilities as
outlined in his or her individualized education program (IEP).
The IEP is developed by a team that includes the pupil's parent
and educators with knowledge of the child's needs. IDEA
requires the IEP team to consider, in the development of the
IEP, positive behavioral intervention, supports and strategies
if behavior impedes a pupil's learning.
Current California law and regulations, pursuant to AB 2586
(Hughes), Chapter 959, Statutes of 1990, also known as the
Hughes Bill, requires the development and implementation of
positive BIPs for pupils with disabilities who exhibit serious
behavioral problems. Implementing regulations of the Hughes
Bill also require a SELPA plan to include procedures governing
the systematic use of behavioral interventions and emergency
interventions and require the plan to include qualifications and
training required of personnel to be designated as behavioral
intervention case managers.
The regulations adopted by the SBE in 1993 to implement the
Hughes Bill exceeded federal law as they included very detailed
and prescriptive requirements for districts and SELPAs such as,
development and implementation of BIPs, functional analysis
assessments, development and implementation of emergency
interventions, and due process hearings. Neither federal law
nor regulations provide criteria or procedures for considering
positive behavioral interventions for pupils with disabilities,
in fact the United States Department of Education states,
"Whether a child needs positive behavioral interventions and
supports is an individual determination that is made by each
child's IEP Team." While there is a requirement for the IEP
team to consider the use of positive behavioral interventions,
there is no specification of particular interventions, supports,
or strategies that the federal law dictates must be used.
The issue of whether the state shall reimburse local educational
agencies (LEAs) for costs relative to the provision of positive
behavior intervention plans for pupils with disabilities has
been pending in the mandate reimbursement process and the courts
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for over fourteen years.
This bill implements a settlement agreement relative to the BIP
mandated cost test claim initiated on September 28, 1994 by the
San Diego Unified School District, the Butte COE, and the San
Joaquin COE, and a subsequent Sacramento Superior Court case,
Department of Finance v. Commission on State Mandates, regarding
this same test claim.
Background : The San Diego Unified School District, Butte COE,
and San Joaquin COE (Hughes Claimants) filed a BIP mandated cost
test claim with the CSM on September 28, 1994, and asked the
state to reimburse LEAs for the costs of implementing the
requirements of the Hughes Bill and its implementing
regulations. On September 28, 2000, the CSM stated that the
Hughes Bill imposed a reimbursable state mandate on school
districts by requiring very specific activities that are not
mandated by federal law.
In 2003, the Department of Finance (DOF) challenged the CSM
decision in the Sacramento Supreme Court alleging that the
Hughes Bill was not a reimbursable state mandate because it was
required by federal law and it did not exceed those
requirements. In December of 2008, DOF and the Hughes Claimants
reached a settlement agreement to resolve the contentious BIP
test claim.
The settlement agreement requires that 85% of the LEAs
representing 92 percent of the statewide ADA must approve the
terms of the settlement and each of those LEAs must sign a
waiver acknowledging that it gives up its right to file any
future mandated cost claims regarding the BIP statutes and
regulations. The California School Boards Association, the
sponsor of this bill, informs Committee staff that 95.55% of
LEAs representing 99.45% of the statewide ADA submitted waivers
by the agreed upon deadline of February 27, 2009 clearly
exceeding the required 85%. Additional waivers were submitted
after the deadline, and as of March 18, 2009 96.16% of LEAs
representing 99.61% of the statewide ADA had submitted such
waivers.
LEAs have to further acknowledge and concede that the amount
that is required to be appropriated for the purpose of
satisfying the minimum funding obligation to school districts
pursuant to Proposition 98 shall not be required to be
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increased, to any extent, by the retrospective payments required
by the settlement agreement.
The settlement agreement also calls for the enactment of urgency
legislation prior to or concurrent with the 2009-10 Budget Act
that reflects the language drafted by the parties. This bill
embodies the agreement reached by the parties and provides the
following:
1)$65 million as a permanent increase to special education base
funding, known as AB 602 (Chapter 854, Statutes of 1997)
funding, commencing in 2009-10 to cover future BIP related
costs;
2)$510 million one-time payment for school districts to be
appropriated in $85 million installments over six years,
commencing in 2011-12 and ending in 2016-17 to cover
retroactive BIP costs;
3)$10 million one-time payment in 2009-10 for retroactive BIP
costs to COEs and SELPAs and for administrative costs incurred
in pursuing the claim.
The amounts agreed to reflect estimates conducted by the Hughes
Claimants through surveys of 21 SELPAs. The results of the
surveys estimated the retroactive costs of the Hughes Bills from
1993-94 to 2007-08 at approximately $949 million. The
settlement would provide about half of this estimated amount.
The annual statewide costs to implement the Hughes bill,
according to the surveys, are estimated at approximately $63
million and the settlement agreement provides $65 million in
ongoing funds.
This bill stipulates that funding that is provided in this
legislation for the BIP mandate claim is deemed as payment in
full satisfaction of, and in lieu of, any reimbursable mandate
claims resulting from the statement of decision of the CSM
regarding the BIP mandated cost test claim. In essence, LEAs
will not have the ability to submit test claims relative to past
or future activities undertaken by the district in relation to
the Hughes Bill.
Legislative Analyst's Office (LAO) recommendation : The LAO
suggests that "the state could eliminate future BIP-related
costs by more closely aligning state regulations with federal
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law."
The LAO approach recommends that IEP teams consider positive
intervention strategies and require them in an IEP only when the
IEP team deems them necessary for a child to meet his or her IEP
goals. The LAO further suggests, "The state also could continue
to limit the types of interventions that districts may use in an
IEP and in case of emergencies. It would not, however, require a
specific course of action be taken in all instances. Districts
therefore would have more discretion in addressing individual
behavior problems. They also would achieve savings by the repeal
of current assessment, training, and procedural requirements.
Any remaining costs could be covered by existing federal and
state special education funding. This approach would save the
state the $65 million in estimated annual ongoing costs."
In consideration of the state's fiscal climate, it is unclear as
to whether other programs will have to be reduced to fund the
provisions of this settlement agreement. The discussion
relative to the appropriations contained in this bill should be
considered in light of the overall state budget. The policy
questions for this Committee to consider are whether this
longstanding claim should be resolved and whether funding should
be provided for retroactive and future BIP costs that SELPAs and
districts have assumed and will assume. Essentially, by virtue
of approving this bill, this Committee would be facilitating the
implementation of the settlement while also upholding the
requirements of the Hughes bill as an important instrument to
provide behavior interventions to ensure pupils with
disabilities that need such interventions can meet their IEP
goals. The ongoing increase to the AB 602 base funding provided
by this bill establishes as a first priority the use of this
funding for the Hughes bill in order for SELPAs and districts to
continue providing BIP to pupils with disabilities. This
settlement agreement also deems the mandate to have been paid in
full and would prevent an LEA from filing a reimbursement claim
on this mandate.
Arguments in support : The California Association of School
Business Officials writes, "This settlement has been 15 years in
the making and comes after a long legal battle between the state
and local educational agencies. With a settlement being
reached, which has been approved by an overwhelmingly majority
of the school boards in the state, it is now time to schedule
out the payments to be received by local education agencies to
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be reimbursed for this mandate."
The California School Boards Association (CSBA) writes, "CSBA is
sponsoring AB 661 (Torlakson) as it is necessary in order to
fully implement the mandate settlement agreement."
Related legislation : AB 1538 (Ma) prohibits an educational
provider from using chemical restraint, mechanical restraint,
physical restraint, or seclusion, on a pupil who is an
individual with exceptional needs for the purpose of coercion,
discipline, convenience, or retaliation by staff. Limits the
use of physical restraint, as defined, and specifies conditions
under which an educational provider would be authorized to use
physical restraint.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
(AFL-CIO)
Antioch Unified School District
California Association of School Business Officials
California School Boards Association (sponsor)
Los Angeles County Office of Education
Riverside County Schools Advocacy Association
San Diego County Office of Education
San Francisco Unified School District
Santa Clara County Office of Education
Special Education Local Plan Area Administrators
Opposition
None on file.
Analysis Prepared by : Marisol Avi?a / ED. / (916) 319-2087