BILL ANALYSIS
AB 1124
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Date of Hearing: April 15, 2009
ASSEMBLY COMMITTEE ON EDUCATION
Julia Brownley, Chair
AB 1124 (Yamada) - As Amended: April 13, 2009
SUBJECT : Special education: due process hearings
SUMMARY : Requires local educational agencies (LEAs) to
continue to provide early intervention services to a child who
is no longer eligible to receive those services through a
regional center because that child has turned three years old
during the pendency of a dispute resolution hearing, if the
dispute involves an application for initial services under a
preschool program serving individuals with exceptional needs
between three to five years of age. Specifically, this bill :
1)Provides that this bill shall be implemented only to the
extent that the Legislature appropriates funds made available
to it by the federal government pursuant to the American
Recovery and Reinvestment Act of 2009 (ARRA) or other federal
legislation similarly intended to provide higher levels of
federal special education funding.
2)Makes minor technical corrections.
EXISTING LAW :
1)Establishes the right of individuals with exceptional needs to
receive a free appropriate public education and ensures the
right to special instruction and related services needed to
meet their individual and unique needs, in conformity with
federal law and regulations.
2)Provides that if a due process hearing request involves an
application for initial services from a child who is
transitioning from an early education program serving
individuals with exceptional needs between the ages of three
to five, inclusive, and is no longer eligible for early
education services because the child turned three the LEA is
not required to provide the early education services that the
child had been receiving.
FISCAL EFFECT : This bill creates a state-mandated local
program.
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COMMENTS : The federal Individuals with Disabilities Education
Act (IDEA) affords rights and services to children with
disabilities. Part C of IDEA requires that infants and toddlers
with disabilities receive early intervention services from birth
to age 3. Children and youth, ages 3 through 21 receive special
education and related services under IDEA Part B. The federal
IDEA was reauthorized in 2004 and its implementing federal
regulations became effective in October, 2006. California has
through legislation, namely AB 1662 (Lieber), Chapter 653,
Statutes of 2005 and AB 1663 (Evans), Chapter 454, Statutes of
2007 aligned state law with the provisions of the 2004 IDEA and
its implementing regulations.
Stay-put provision : The new IDEA regulations include a change
regarding a child's status during dispute resolution proceedings
particularly when a child is transitioning from early
intervention services to a preschool program. The new
regulations state that if the complaint involves an application
for initial services under Part B for a child who has turned
three and is no longer eligible for services under Part C, the
LEA is not required to provide the Part C services that the
child had been receiving as part of the child's Individualized
Family Service Plan (IFSP). As noted in the federal
regulations, "The programs under Parts B and C of IDEA differ in
their scope, eligibility, and the services available. Services
under Part B of the Act are generally provided in a school
setting. By contrast, services under Part C of the Act are
provided, to the maximum extent appropriate, in the natural
environment, which is often the infant or toddler's home or
other community program designed for typically developing
infants or toddlers."
In California, the early intervention services are provided
through the Department of Developmental Services (DDS) working
with regional centers. The placement and services under Part C
are focused primarily on the child's developmental needs and are
outlined in the child's IFSP. In contrast, Part B services are
educational in nature and are provided by LEAs to meet the
federal requirement to provide pupils with disabilities a free
and appropriate public education (FAPE).
When a child transitions from Part C to Part B, he or she may
still be eligible to receive services through a regional center
in which case, an individual program plan (IPP) is developed for
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the child. In addition, the child may also be eligible for
special education services and related services in which case an
individualized education program (IEP) is developed for the
child. The expertise of both entities the regional center and
the LEA can complement each other to serve the developmental and
educational needs of the pupil. In other cases, the child
transitions completely to a preschool program and receives
services solely through the LEA.
There are cases when there is disagreement regarding placement
and/or contents of the IEP. A process is currently in place to
resolve a dispute which can include a request for a due process
hearing. Under Part B, if there is a dispute, the child is
allowed to remain in his or her current educational placement
(stay-put) during the dispute. Stay-put does not apply during
the transition from Part C to Part B because the United States
Department of Education (USDOE) "has long interpreted the
current educational placement language in the 'stay-put'
provision as referring only to the child's placement under Part
B of IDEA and not to the early intervention services received by
the child under Part C of the Act." When the dispute involves
an initial application for services the child technically does
not have an educational placement. The USDOE states, "We
believe that a child who previously received services under Part
C of the Act, but has turned three and is no longer eligible
under Part C, and is applying for initial services under Part B
of the Act, does not have a 'current educational placement.'"
Prior to 2007, California law was silent on this issue and the
courts interpreted the law when these cases emerged.
The goal of this bill is to ensure that there are no
interruptions in services for children during the pendency of a
hearing when the dispute involves an intial application for
services under Part B. This bill could have the effect of
requiring school districts to implement a child's IFSP. Without
additional funds, LEAs may find it difficult to provide the
services that regional centers provide for infants and toddlers
such as applied behavior analysis, nutrition services, or
pragmatic speech/socialization services. LEAs could use
providers for these services but the providers may not
necessarily be the same as the regional center providers which
will in turn create an interruption and delay in services for
the child. This may be contrary to the intent of the bill which
is to provide a smooth and seamless transition for children in
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transition during the pendency of a hearing.
The Legislative Blue Ribbon Commission on Autism (Commission)
reported that families often encounter difficulties when
children with Autism Spectrum Disorders (ASD) reach age three
and transition from the Early Start Program services to the LEA
program. The report from the Commission states, "The transition
may occur without appropriate planning, case management, and
communication, and therefore cause disruptions in evaluations
and effective interventions during a critical period in early
child development. The transition may also cause the child to
lose access to services and particular service providers, since
regional center and local education agency programs may not
offer the same or comparable services or service providers.
Some schools, especially those in rural areas, may have very
limited access to service providers."
The Commission identified as one of its priorities providing a
seamless and integrated transition from regional centers to
school districts at three years of age, and thus recommended to
establish a multi-site demonstration project to establish a
seamless system for service delivery between regional centers
and school districts for children with ASD from birth to
kindergarten.
It is unclear as to how many children this bill could
potentially impact and what the actual cost of providing these
services would be. According to the California Department of
Education (CDE) in 2006-07 there were 13 complaints related to
the transition from early intervention services to preschool
programs and in 2005-06 there were 9 cases. It could be argued
that this bill will have an impact on a small number of children
and that the benefits that this bill will afford to these
children outweigh the costs for providing these services.
This bill requires LEAs to provide additional services in excess
of federal IDEA and therefore this can potentially create a
reimbursable state mandate. The bill specifies that it shall be
implemented only to the extent that there is an appropriation
made from federal funds through the ARRA or other federal
legislation. It is not clear that Part B ARRA funds will be
available for this purpose and furthermore the decisions on the
uses of ARRA funds should be made in the context of the entire
state budget. The language in the bill does not make it clear
that the bill would be implemented pursuant to an appropriation
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made specifically for this purpose. As the bill reads, it could
be implemented if the Legislature makes any appropriation from
the ARRA or other federal legislation. Staff recommends the
bill be amended to add "for this purpose" on page 4, line 6
after "funding"
The American Recovery and Reinvestment Act of 2009 (ARRA)
(Public Law 111-5) appropriates new funding for programs under
Parts B and C of IDEA. According to the United States
Department of Education, "The IDEA ARRA Funds will provide an
unprecedented opportunity for states, LEAs, and EIS [early
intervention services] programs to implement innovative
strategies to improve outcomes for infants, toddlers, children,
and youth with disabilities while stimulating the economy.
Under the ARRA, the IDEA Part B ARRA funds are provided under
three authorities: $11.3 billion is available under Part B
Grants to States; $400 million is available under Part B
Preschool Grants; and $500 million is available under Part C
Grants for Infants and Families."
The CDE estimates that the ARRA may provide up to $1.3 billion
to California for purposes of funding IDEA services for pupils
with disabilities ages 3-21. CDE provides examples of potential
allowable uses of these funds:
1)State-of-the-art assistive technology devices and training in
their use to enhance access to the general curriculum for
students with disabilities.
2)Intensive district-wide professional development for special
education and regular education teachers that focuses on
scaling-up, through proven strategies in reading, math,
writing, science, and positive behavioral supports to improve
outcomes for students with disabilities.
3)Develop or expand the capacity to collect and use data to
improve teaching and learning.
4)Expand the availability and range of inclusive placement
options for preschoolers with disabilities by developing the
capacity of public and private preschool programs to serve
these children.
5)Hire transition coordinators to work with employers in the
community to develop job placements for youth with
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disabilities.
The author states, "Current law does not establish a safeguard
for children who turn three during a due process hearing and who
are not yet eligible for services provided by local educational
agencies (LEA), which school districts usually provide."
Arguments in support : The National Autism Association writes,
"Children receiving early intervention programs through their
Regional Center cannot afford to have those services interrupted
in the event a dispute arises during the transition from
Regional Center to the School District. Valuable time and gains
made in acquisition of skills will be lost if services are
interrupted during this transition."
Arguments in opposition : The California Association of School
Business Officials writes, "AB 1124 would force preschool
programs to provide services under an Individualized Education
Program (IEP) to which they had no input and continue services
that may no longer be necessary or relevant."
Prior legislation : AB 1768 (Evans and Lieber) of 2008 requires
local educational agencies (LEAs) to continue to provide early
intervention services to a child who is no longer eligible to
receive those services through a regional center because that
child has turned three years old during the pendency of a
dispute resolution hearing, if the dispute involves an
application for initial services under a preschool program
serving individuals with exceptional needs between three to five
years of age. AB 1768 was held in the Assembly Appropriations
Committee.
AB 1663 (Evans), Chapter 454, Statutes of 2007 makes various
revisions to state special education statutes to bring them in
conformity with federal changes enacted through the 2004
reauthorization of the Individuals with Disabilities Education
Improvement Act and implementing federal regulations, including
the specification that stay put does not apply to a child
receiving services under Part C and is applying for initial
services under Part B because he or she has turned three years
of age.
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REGISTERED SUPPORT / OPPOSITION :
Support
Association of Regional Center Agencies
Autism Society of America-California Chapter
Autism Society of America-Inland Empire Chapter
Autism Society of America, Santa Barbara Chapter
Autism Speaks-Sacramento Advocacy Committee
California Federation of Teachers
Disability Rights California
Families for Early Austism Treatment
Families for Effective Austism Treatment-Fresno Madera Counties
Friends of Children with Special Needs
Learning Rights
National Autism Association
Parents Helping Parents
Sacramento Asperger Syndrome Information & Support
Schafer Autism Report
Several individuals
Opposition
California Association of School Business Officials
California Association of School Psychologists
California School Boards Association
California Teachers Association
San Francisco Unified School District
Analysis Prepared by : Marisol Avi?a / ED. / (916) 319-2087