BILL ANALYSIS
AB 1124
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Date of Hearing: May 13, 2009
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Kevin De Leon, Chair
AB 1124 (Yamada) - As Amended: April 22, 2009
Policy Committee: Education
Vote:10-0
Urgency: No State Mandated Local Program:
Yes Reimbursable: Yes
SUMMARY
This bill requires a local education agency (LEA) to continue
providing early intervention services to a child with
exceptional needs between the ages of three and five years in a
preschool program (if the child is no longer eligible for
services under federal law), pending the resolution of a due
process hearing, as specified. Specifically, this bill:
1)Specifies that this requirement will only be implemented to
the extent that the Legislature appropriates federal American
Recovery and Reinvestment Act of 2009 (ARRA) funds or other
funds intended to provide higher levels of federal special
education funding for this purpose.
2)Deletes existing statute that prohibits the requirement for
LEAs to provide early intervention services to a child with
exceptional needs between the ages of three and five years, as
specified.
FISCAL EFFECT
GF/98 costs, likely between $360,000 and $720,000, to require
LEAs to continue providing early intervention services to a
pupil with special needs between the ages of three and five, as
specified.
Between July 2005 and April 2007, the State Department of
Education (SDE) reports there were 225 due process hearings
conducted by the Office of Administrative Law. Of this number,
approximately 12 cases involved children who turned three years
of age during this process. SDE reports that there are
approximately 34,450 children who turned three and receive
services under IDEA Part C.
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COMMENTS
1)Background . The federal Individuals with Disabilities
Education Act (IDEA) delineates rights and services for
persons with disabilities. A portion of IDEA requires infants
and toddlers with disabilities to receive early intervention
services form birth through age three, as specified in their
Individualized Family Services Plan (IFSP) (now known as IDEA
Part C). These services include health services, family
counseling, occupational therapy, psychological services, and
speech/language services. Services are provided through the
state's 21 developmental disabilities regional centers,
administered by the Department of Developmental Services
(DDS). Children between the ages of three and 21 receive
special education services through LEAs, as specified in their
Individual Education Plan (IEP) (now known as IDEA Part B).
For children receiving special education services between the
age of three and 21, federal IDEA Part B statute requires
appeal procedures, including due process hearings, to resolve
disagreements regarding educational placements and/or the
contents of a pupil's IEP. Federal law further requires that
while the dispute is being resolved a pupil is allowed to
remain in his or her current educational placement and
continue to receive services specified in the IEP. This is
referred to as "stay-put." Stay-put ensures stability for the
pupil and is intended to minimize disruption and turmoil in
the child's education.
In 2006, the United State Department of Education (USDOE)
issued regulations regarding the stay-put provision of IDEA
that state the LEA is not required to provide the educational
services (Part B) while the dispute is being resolved. AB 1663
(Evans), Chapter 454, Statutes of 2007 made several revisions
to state special education law to comply with IDEA, including
conforming to IDEA's regulations regarding stay-put
provisions. This bill would amend state law to reverse Chapter
454's conforming changes and require LEAs to continue
providing early intervention services under IDEA Part C to a
child between three and five years of age, as specified.
2)How did California address the "stay put" provision prior to
Chapter 454 ? Prior to Chapter 454, California was silent on
the "stay-put" provisions and the courts and dispute
resolution hearing offers interpreted this provision at their
discretion. For example, in Johnson v. Special Education
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Hearing Office (9th Cir. 2002) 287 F.3d 1176, the federal 9th
Circuit Court of Appeals, which includes California, addressed
the issue of stay-put for children transitioning from early
intervention to preschool programs. The court held that, under
the IDEA stay-put, when disputes arise concerning children
transitioning from Part C to Part B, school districts are
required to provide a program in conformity with that provided
under Part C pending resolution of a dispute. The 3rd Circuit
similarly required a school district to provide services per a
student's Part C IFSP pending resolution of a dispute.
3)Federal ARRA funds . In February 2009, the federal government
passed the ARRA, which allocated approximately $100 billion
nationwide for education programs with the purpose of
stimulating the economy. Of this amount, California is
expected to receive approximately $8 billion.
According to SDE, California is expected to receive $11.7
billion in one-time funds for services for students with
disabilities pursuant to IDEA, based on the existing federal
formula. Of this total, $11.3 billion is for IDEA Part B for
children ages 6 - 21 and $400 million is for IDEA Part B, for
children ages 3 - 5.
ARRA also provides $500 million one-time via existing formula
for IDEA Part C, for children age 0 to 2. In California, these
funds are administered by DDS for the regional centers.
In April 2009, the Department of Finance (DOF) issued a
Section 28.00 letter to allocate $634 million in federal ARRA
IDEA funds. Section 28.00 is a provision in the annual budget
act that authorizes the Director of DOF to augment the
expenditure of unanticipated federal funds.
Of the $634 million, $613.5 million one-time is for IDEA Part
B (services to children between the ages of 3-21) and $20.58
million one-time is for IDEA Part B - Preschool grants. ARRA
statute related to special education funding states: "a state
may not use funds paid to it under this part to satisfy
state-law mandated funding obligations to LEAs, including
funding based on student attendance or enrollment, or
inflation." Likewise, according to DOF's letter, "IDEA
recovery funds must be allocated and used by LEAs according to
current IDEA statutory and regulatory requirements."
This bill proposes to use on-time ARRA funds to pay the costs
of an on-going requirement that is no longer in federal IDEA
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statute (i.e., the stay-put provision for children ages three
to five). According to federal statute and DOF's letter, this
is not allowable under ARRA.
4)SDE and DDS joint venture on transition practices for pupils
with special needs . In April 2009, SDE and DDS issued letters
to their respected fields regarding smooth transitions from
IDEA Part C to IDEA Part B for pupils with special needs.
Specifically, both departments will participate in a technical
assistance and support project conducted by the Western
Regional Resource Center.
5)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.
6)Previous legislation . AB 1768 (Evans), similar to this
measure, was held on this committee's suspense file in May
2008.
Analysis Prepared by : Kimberly Rodriguez / APPR. / (916)
319-2081