BILL ANALYSIS
SENATE COMMITTEE ON EDUCATION
Gloria Romero, Chair
2009-2010 Regular Session
BILL NO: AB 1841
AUTHOR: Buchanan
AMENDED: June 3, 2010
FISCAL COMM: No HEARING DATE: June 16, 2010
URGENCY: No CONSULTANT:Lynn Lorber
NOTE : This bill has been referred to the Committees on
Education and Judiciary. A "do pass" motion should include
referral to the Committee on Judiciary.
SUBJECT : Special education: parental consent.
KEY POLICY ISSUES
Should state special education law be amended to conform to
federal regulations?
Is California jeopardizing federal special education funds
by being out of compliance with federal law?
Should schools no longer be required to initiate a due
process complaint against parents who revoke consent for
special education for their child?
Should the individualized education program (IEP) team
agree with the revocation of consent before instruction and
services are terminated? Do the rights of parents outweigh
the role and input of the IEP team?
SUMMARY
This bill conforms state law to federal law by specifically
prohibiting schools from initiating due process procedures
against a parent of a student with special needs if the
parent revokes consent for special education.
BACKGROUND
Current federal law and regulations
The federal Individuals with Disabilities Education Act
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(IDEA) requires that all children with disabilities be
provided a free appropriate public education (FAPE) in the
least restrictive environment, and sets forth the
responsibilities of states and local education agencies.
The IDEA was reauthorized in 2004 and its implementing
federal regulations became effective in October 2006.
Clarifying amendments to the regulations were subsequently
adopted in December 2008.
The revised federal regulations provide that "consent"
means that:
1) The parent has been fully informed of all information
relevant to the activity for which consent is sought,
in his or her native language, or through another mode
of communication.
2) The parent understands and agrees in writing to the
carrying out of the activity and the consent describes
that activity and lists the records (if any) that will
be released and to whom.
3) The parent understands that the granting of consent is
voluntary on the part of the parent and may be revoked
at any time. If a parent revokes consent in writing
after the child is initially provided special
education and related services, the public agency is
not required to amend the child's education records to
remove any references to the child's receipt of
special education and related services because of the
revocation of consent. (Code of Federal Regulations,
Title 34, Section 300.9)
The federal regulations also require that parental
revocation of consent for the continued provision of
special education and related services to a child must be
made in writing and that upon revocation of consent, a
public agency:
1) May not continue to provide special education and
related services but must provide prior written notice
before ceasing the provision of special education and
related services.
2) May not use procedural safeguards, including mediation
or due process, in order to obtain agreement or a
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ruling that the services may be provided to the child.
3) Will not be considered to be in violation of the
requirement to make FAPE available to the child
because of the failure to provide the child with
further special education and related services.
4) Is not required to convene an individualized education
program (IEP) team meeting or develop an IEP for the
child for further provision of special education and
related services. (34 CFR 300.300)
Current state law :
1) Requires a local education agency (LEA) to seek to
obtain informed consent from the parent of a child
prior to the provision of special education or related
services. (Education Code 56346)
2) Prohibits LEAs from providing special education or
related services to a child if the parent fails to
respond or refuses to consent to the initiation of
special education or related services. (EC 56346)
3) Prohibits LEAs from filing a due process complaint
against a parent who fails to respond or refuses to
consent to the initiation of special education and
related services. (EC 56346)
4) Applies both of the following if the parent refuses
initial consent or fails to respond to a request to
provide consent:
a) The LEA shall not be considered to be in
violation of the requirement to make FAPE
available to the child for failure to provide
special education and related services for which
the LEA requests consent.
b) The LEA shall not be required to convene
an IEP team meeting or develop an IEP for the
child. (EC 56346)
5) Requires LEAs to file a request for due process if the
parent of a child with special needs refuses all
services in the IEP after having consented to those
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services in the past. (EC 56346)
6) Essentially mirrors federal regulations with respect
to parental consent but is silent regarding the
amendment of education records if parental consent is
revoked. (EC 56021.1)
ANALYSIS
This bill conforms state law to federal law by prohibiting
schools from initiating due process procedures against a
parent of a student with special needs if the parent
revokes consent for special education. Specifically, this
bill:
1) Deletes the requirement that a local educational
agency file a request for due process if a parent of a
child with special needs revokes consent for all
services in the individualized education program (IEP)
after having consented to those services in the past.
2) Prohibits a public agency from doing the following if
a parent of a child with special needs submits a
written revocation of his or her consent at any time
subsequent to the initial provision of special
education and related services to the child:
a) Continue to provide special education and
related services to the child, but is required to
provide prior written notice to the child's
parent before ceasing the provision of special
education and related services.
b) Use procedural safeguards, including
mediation and due process complaint procedures,
to obtain agreement or a ruling that the services
may be provided to the child.
3) Deems a public agency to be in compliance with the
requirement to make a free appropriate public
education available to a child if the agency ceases to
provide the child with further special education and
related services.
4) Specifies that a public agency is not required to
convene an IEP team meeting or develop an IEP for the
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child for further provision of special education.
5) Specifies that a public agency is not required to
amend the education records of a child to remove any
reference to the child's receipt of special education
and services if the child's parent submits a written
revocation of consent after the initial provision of
special education and related services to the child.
STAFF COMMENTS
1) Need for the bill . According to the author, "as a
condition of receiving more than $1.2 billion in
federal grant funds under the IDEA, California is
required to comply with these new regulations. If the
state's Education Code is not brought into compliance,
the state could jeopardize its IDEA grant eligibility.
If California is found noncompliant, the US
Department of Education could sanction the California
Department of Education, and reduce or withhold
federal funds the state receives for special education
services."
2) Conforms with consent for initial provision of special
education . Current law prohibits local education
agencies from filing a due process complaint against a
parent who fails to respond or refuses to consent to
the initiation of special education and related
services. This bill extends this prohibition to
situations where a parent initially gives consent but
subsequently revokes that consent.
3) Role of the parent vs IEP team . Concerns were raised
during deliberations on the federal regulations about
leaving parents unchallenged by a due process
complaint or individualized education program (IEP)
team meeting upon revocation of consent for special
education. While it is the role of the IEP team, of
which the parent is a member, to produce an IEP that
describes the specific instruction and related
services to be provided to the pupil, the parent must
give written consent agreeing to that instruction and
those services before it may be provided. In response
to these concerns, the United States Department of
Education determined that the federal regulations were
"consistent with the IDEA's emphasis on the role of
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parents in protecting their child's rights and the
Department's goal of enhancing parent involvement and
choice in their child's education." Should the IEP
team agree with the revocation of consent before
instruction and services are terminated? Do the
rights of parents outweigh the role and input of the
IEP team?
4) All or nothing ? Current law provides that a parent
may consent to only a portion of the IEP, and requires
those components to which the parent consented to be
implemented. However, current law does require a
local education agency to initiate a due process
hearing if it determines a component to which the
parent does not consent is necessary to provide FAPE.
This bill does not alter these provisions. (EC
56346)
5) Future eligibility . This bill does not affect a
pupil's eligibility for special education and related
services subsequent to revocation of consent.
6) Pupil records . This bill clarifies that a public
agency is not required to amend the education records
of a child to remove any reference to the child's
receipt of special education and services if consent
is revoked. This language addresses the issue of
retroactivity; if special education and related
services are provided and subsequently revoked, the
past provision of special education is not negated,
and therefore, the pupil's record should continue to
reflect that special education and related services
were provided at one time. This provision conforms to
federal regulations.
7) Prior legislation .
AB 1663 (Evans, Ch. 454, 2007) made
various revisions to state special education
statutes to bring them into conformity with
federal changes enacted through the 2004
reauthorization of IDEA and its implementing
federal regulations.
AB 685 (Karnette, Ch. 56, 2007) made
technical changes to several provisions of the
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Education Code and the Government Code regarding
individuals with exceptional needs and special
education to conform to updated federal
regulations.
AB 1662 (Lieber, Ch. 653, 2005) made
changes to state special education statutes to
bring them into conformity with federal changes
enacted through the 2004 reauthorization of the
IDEA.
SUPPORT
Association of California School Administrators
California Association of Joint Powers Authorities
California School Boards Association
California Teachers Association
Developmental Disabilities Area Board 10
Disability Rights California
Los Angeles County Office of Education
San Francisco Unified School District
Special Education Local Plan Area Administrators
Superintendent of Public Instruction
OPPOSITION
None received.