BILL ANALYSIS
AB 661
Page 1
Date of Hearing: April 29, 2009
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Kevin De Leon, Chair
AB 661 (Torlakson) - As Introduced: February 25, 2009
Policy Committee:
EducationVote:10-0
Urgency: Yes State Mandated Local Program:
No Reimbursable: No
SUMMARY
This bill implements the Behavioral Intervention Plan (BIP)
mandate claim settlement by allocating one-time and on-going
GF/98 funding via the special education funding model to Special
Education Local Plan Areas (SELPAs). Specifically, this bill:
1)Allocates $65 million as an augmentation to the 2009 Budget
Act, with the intention that this be an annual appropriation
and $85 million one-time, beginning in the 2010-11 fiscal year
(FY) until the 2016-17 FY, for a total of $510 million GF/98
to pay school districts' prior year BIP mandate claims, dating
back to 1993-94.
2)Requires the Superintendent of Public Instruction (SPI) to
conduct a series of calculations that result in a permanent
increase, beginning in the 2009-10 FY, to the annual average
daily attendance (ADA) calculated for SELPAs, including those
special education programs served by the Los Angeles Juvenile
Court and Community School/Division of Alternative Education
SELPA. This increase is the result of the $65 million GF/98
(on-going) appropriated annually to SELPAs for the BIP mandate
settlement.
3)Requires the SPI to increase the statewide target per ADA for
special education funding for the 2009-10 FY by the amount of
funding determined above.
4)Appropriates $85 million from the GF/98 on a one-time basis in
each of the 2011-12 to 2016-17 FYs to the SPI for allocation
to school districts on a per-pupil basis, as specified. This
measure further requires the amount allocated to each district
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be the same in all subsequent FYs as it is in the first FY.
FISCAL EFFECT
1)Appropriates $65 million GF/98 annually to school districts
for the annual cost of the BIP mandate.
2)Appropriates $85 million one-time GF/98 for six FYs (beginning
in 2011-12), for a total of $510 million GF/98, to pay school
districts' prior year BIP mandate claims, dating back to
1993-94.
3)Appropriates $10 million from the GF/98 to the SPI for
allocation on a one-time basis to county offices of education
(COEs) and SELPAs and requires the funds to be in addition to
the level of any COLA provided to COEs and SELPAs in the
annual budget act. This bill further requires that the
minimum allocation to COEs be at least $5,000.
4)GF/98 cost pressure, likely in the tens of millions, for
increased COLA costs due to the $65 million annual
appropriation built into the base of the special education
funding model.
SUMMARY CONTINUED :
1)Authorizes the state to allocate an amount in excess of $85
million GF/98 in any of the relevant FYs for the purpose of
discharging the obligation in advance of the period designated
by this measure, as long as the total amount appropriated is
$510 million GF/98. This amount is required to be in addition
to any cost-of-living (COLA) adjustment provided to school
districts in the annual budget act and is designated to pay
off prior year BIP mandate claims.
2)Prohibits the $85 million GF/98 one-time payment from
occurring if Proposition 98 is determined to be in a "Test 3
year" (i.e., slow per capita personal income growth). This
measure further specifies that if the appropriation is not
made due to a Test 3 year, it is to be made in the immediate
following FY, as specified.
COMMENTS
1)Background . The federal Individuals with Disabilities
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Education Act (IDEA) delineates rights and services for
persons with disabilities. Specially, IDEA requires pupils to
have a right to a free and appropriate public education
(FAPE). As a result, school districts are responsible for
providing special education and related services pursuant to
an Individualized Education Program (IEP), which is developed
by a team with special education expertise and knowledge of a
child's particular needs.
As part of the IEP process, AB 2586 (Hughes), Chapter 959,
Statutes of 1990, attempted to regulate the use of behavioral
interventions and encourage the application of positive
behavioral strategies with special education students. Chapter
959 required the State Board of Education (SBE) to adopt
regulations that accomplished the following: (a) specified the
types of behavioral interventions districts could and could
not use; (b) required IEPs to include, if appropriate, a
description of positive interventions; and (c) established
guidelines for emergency interventions.
Many consider the regulations that were adopted by the SBE to
exceed the intent of Chapter 959. For example, the
regulations require school districts to conduct one particular
type of behavioral assessment (i.e., a "functional"
assessment) followed by a particular type of BIP (i.e., a
systematic positive BIP) for any special education student
exhibiting serious behavior problems that interfered with the
implementation of his or her IEP. In addition, the regulations
require districts to train staff in these strategies.
In 1994, three local education agencies (LEAs) (San Diego
Unified School District, Butte County Office of Education, and
San Joaquin County Office of Education) filed a mandate test
claim charging that the BIP related requirements constituted a
reimbursable state mandate. The Commission on State Mandates
(CSM) ruled that Chapter 959 "on its face, does not impose any
reimbursable state mandated activities." However, the
regulations adopted by SBE, under the authority of Chapter
959, constitute a state reimbursable mandate.
In 2000, the CSM heard the test claim and ruled in favor of
the three LEAs. The Department of Finance (DOF) appealed this
decision. Rather than continue to pursue the appeal, DOF
reached a settlement with the three LEAs in December 2008.
This bill, sponsored by the California School Board
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Association, implements this settlement agreement.
This committee notes that the Legislature is not a party to
this settlement agreement and is not under any obligation to
agree to its terms. However, under the agreement, funding is
required to be appropriated and this authority lies solely
with the legislative branch.
2)The terms of BIP mandate settlement state that school
districts receive $65 million GF/98 annually to defray the
ongoing cost of BIPs, in addition to a lump sum payment of
roughly $510 million GF/98 to settle the outstanding claims.
The $65 million GF/98 on-going payment is built into the base
of the special education funding model. These amounts are
based on results from school district and SELPA surveys
conducted by DOF.
The settlement agreement also requires that by February 28,
2009, 85% of all LEAs sign a document that waives their rights
to contest the settlement and to file any BIP mandated cost
claims. As of April 2009, 96% of LEAs have submitted this
document within the time frame, which represents 5.7 million
ADA or 99.5% of the special education funding model ADA for
the 2007-08 FY.
3)The Legislative Analyst Office (LAO) Alternative . Since the
enactment of Chapter 959, federal law has included the use of
behavioral interventions as part of the IEP process.
Specifically, federal law now requires IEP teams to consider
behavioral interventions, including positive behavioral
interventions, when a student's behavior impedes his or her
learning or that of others. Additionally, if an IEP team
determines that a behavioral intervention is needed to ensure
a child receives a FAPE, the IEP team must include an
intervention in that child's IEP. Federal law does not
prescribe the type of behavioral intervention that IEP teams
may include.
As a result of this change in federal law, the LAO argues that
"the state could eliminate future BIP related costs by more
closely aligning state regulations with federal law. Under
this approach, IEP teams would have to consider positive
intervention strategies and would be obligated to include them
in an IEP when teams deem them necessary for a child to meet
his or her IEP goals. The state also could continue to limit
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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."
4)The Governor's 2009-10 budget proposed to suspend all but
three K-14 mandates through 2010-11 . In December 2008, a San
Diego Superior Court judge ruled that the Legislature's
practice of budgeting $1,000 in the annual budget act for
certain mandates in order to defer payment on the total claim
is unconstitutional. The ruling was in response to a lawsuit
filed in 2007 by five school districts and the California
School Boards Association against DOF and the State Controller
seeking payment of past mandate claims and to end the act of
deferring K-12 education mandates.
While constitutional separation of powers left the court with
the inability to force the Legislature to make budgetary
appropriations for K-12 mandates, its decision increases
pressure on the state to pay the annual ongoing cost of these
mandates.
The suspension of mandates relieves the state from the
obligation to pay for required activities. Likewise, local
schools do not have to perform these activities. According to
the LAO, the governor's proposed suspensions would reduce
associated 2009-10 claims by roughly $200 million.
In enacting the 2009 Budget Act in February 2009, the
Legislature did not take action on this issue and instead
indicated that it would hear this item within the regular 2008
legislative process.
The Assembly Budget Subcommittee on Education voted on April
21, 2009 to reject this proposal.
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Analysis Prepared by : Kimberly Rodriguez / APPR. / (916)
319-2081