BILL ANALYSIS
SENATE COMMITTEE ON EDUCATION
Gloria Romero, Chair
2009-2010 Regular Session
BILL NO: SB 1059
AUTHOR: Liu
AMENDED: April 5, 2010
FISCAL COMM: Yes HEARING DATE: April 21, 2010
URGENCY: No CONSULTANT:Lynn Lorber
SUBJECT : District of residence: foster youth in juvenile
hall with special education needs.
KEY POLICY ISSUES
Should a county office of education be financially
responsible for the provision of a free appropriate public
education to foster youth with special education needs who
have been detained in a juvenile hall and are subsequently
placed in a residential treatment facility?
Should the county office of education be responsible for
transitioning such a pupil to a new educational placement if
the pupil's individualized education program team
subsequently determines a less-restrictive environment would
meet the pupil's needs?
Should the county office of education be responsible for the
residential treatment facility placement if the juvenile
court no longer has jurisdiction over the pupil?
Should the basis for determining the residency of a pupil
described above (and therefore which local education agency
is responsible for providing a free appropriate public
education) be the residency of the pupil's surrogate parent?
SUMMARY
This bill requires a county office of education to be
financially responsible for the provision of a free
appropriate public education to a foster youth with special
education needs who has been detained in a juvenile hall and
is subsequently placed in a residential treatment facility.
BACKGROUND
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Current law:
1) Provides that a pupil complies with the residency
requirements for school attendance in a school district,
if he or she is any of the following:
a) A pupil placed within the boundaries of
that school district in a group home or foster
home.
b) A pupil for whom interdistrict attendance
has been approved.
c) An emancipated pupil whose residence is
located within the boundaries of that school
district.
d) A pupil who lives in the home of a
caregiving adult that is located within the
boundaries of that school district.
e) A pupil residing in a state hospital
located within the boundaries of that school
district.
f) Until July 1, 2012, a school district may
deem a pupil to have complied with the residency
requirements in the district if at least one parent
is physically employed within the boundaries of
that district. (Education Code 48204)
2) Requires the county board of education to administer and
operate juvenile court schools. (EC 48645.2)
3) Requires, when an assessment determines that a pupil is
seriously emotionally disturbed and any member of the
individualized education program (IEP) team recommends
residential placement based on relevant assessment
information, the IEP team to be expanded to include a
representative of the county mental health department.
(Government Code 7572.5.)
4) Requires the Superintendent of Public Instruction to
ensure that local education agencies provide special
education and those related services and designated
instruction and services contained in a pupil's IEP that
are necessary for the pupil to benefit educationally
from his or her instructional program. (GC 7573.)
5) Provides that the involvement of an administrator of the
special education local plan area (SELPA) in the IEP
team discussion of where to place the pupil shall in no
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way obligate a public education agency to pay for the
residential costs and the cost of non-educational
services for a pupil placed in a group home or foster
family home. (GC 7579)
6) Requires a local educational agency to appoint a
surrogate parent for a pupil under one or more of the
following circumstances:
a) The pupil is a dependent or ward of the
court, has no responsible adult to represent him or
her, and either has an IEP in place or has been
referred for assessment of special needs.
b) No parent for the pupil can be identified.
c) The local educational agency, after
reasonable efforts, cannot discover the location of
a parent. (GC 7579.5)
7) Provides that the surrogate parent shall serve as the
pupil's parent and shall have the rights relative to the
pupil's education that a parent has. The surrogate
parent may represent the pupil in matters relating to
special education and related services, including the
identification, assessment, instructional planning and
development, educational placement, reviewing
and revising the IEP, and in all other matters relating
to the provision of a free appropriate public education
of the pupil. (GC 7579.5)
State regulations require the local education agency to be
financially responsible for:
1) The transportation of a pupil with a disability to and
from the mental health services specified in the pupil's
IPE.
2) The transportation of a pupil to and from the
residential placement as specified in the IEP.
3) The special education instruction, non-mental health
related services, and designated instruction and
services agreed upon in the non-public, non-sectarian
school services contract or a public program arranged
with another special education local plan area or local
education agency. (California Code of Regulations
60200)
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Federal regulations require:
1) A recipient of federal Individuals with Disabilities
Education Act (IDEA) funds that operates a public
elementary or secondary education program or activity to
provide a free appropriate public education to each
qualified handicapped person who is in the recipient's
jurisdiction, regardless of the nature or severity of
the person's handicap. This section authorizes a
recipient to place or refer a handicapped person for
aid, benefits, or services other than those that it
operates or provides, and specifies that the recipient
remains responsible for ensuring that the requirements
of federal IDEA regulations are met with respect to any
handicapped person so placed or referred. (Code of
Federal Regulations 104.33)
2) A placement in a public or private residential program,
including non-medial care and room and board, to be at
no cost to the parents of the child if such placement is
necessary to provide special education and related
services to a child with a disability. (CFR 300.104)
ANALYSIS
This bill requires a county office of education to be
financially responsible for the provision of a free
appropriate public education to foster youth with special
education needs who have been detained in a juvenile hall and
are subsequently placed in a residential treatment facility.
Specifically, this bill:
1) Declares that, for any pupil placed in a foster home or
group home, the school district in which the pupil
resides is the district of residence, and it is that
school district that is responsible for providing the
pupil with a free appropriate public education (FAPE).
2) Declares that, for a pupil in a juvenile court school,
the county board of education is the district of
residence and is responsible for the provision of FAPE
for individuals with exceptional needs.
3) Requires the county board of education, as part of
providing FAPE, to pay and provide for residential
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placement, any other related service, benefit or aid,
whether located inside or outside of the juvenile court
school.
4) Requires the county board of education to remain the
district of residence when a pupil is placed at a
residential placement, even after the disposition
of the pupil's delinquency case and through the
duration of the residential
placement.
5) Requires the county office of education to be
responsible for transitioning the pupil into a
subsequent educational placement if a determination is
made by the pupil's individualized education program
(IEP) team that a less-restrictive environment (than the
residential treatment facility) is appropriate for the
pupil. This bill authorizes the subsequent placement to
be a public school or a non-public school certified by
the California Department of Education, and
requires the county office of education to develop an
IEP that includes a transition plan to the new
educational placement.
6) Requires, if a dispute arises regarding which local
education agency is responsible for providing FAPE, the
county board of education to be responsible for the
educational placement and services determined by the IEP
team until the dispute is resolved.
7) Authorizes the county board of education to seek
reimbursement from public agencies that fail to accept
timely responsibility for a pupil described in this
bill.
8) Declares that the residence of a surrogate parent or
judicially appointed person to act as the "parent" for a
pupil receiving special education does not determine the
school district of residence.
STAFF COMMENTS
1) Need for the bill : According to the author, the lack of
clarity in existing law can make it difficult to
determine which local education agency is legally
responsible to provide services for foster youth with
special education needs who are detained in juvenile
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hall. One of the problems resulting from this
uncertainty is that a school district that the child may
never have attended could be held responsible for the
provision of services. Disputes are costly and time
consuming, and these pupils are not receiving necessary
services until the dispute is resolved.
2) Why should a county office of education still be
responsible once a pupil leaves juvenile hall ? The
pupils addressed in this bill are foster youth who have
been detained in juvenile hall. Once a pupil enters
juvenile hall, the county office of education becomes
the district of residence. The pupils addressed by this
bill are typically in juvenile hall with "charges
pending" because the court believes treatment may be
more appropriate than detainment. If the individualized
education program (IEP) team, including mental health
professionals, determines a residential treatment
facility would meet the pupil's needs, the juvenile
court orders the placement. Should the county office of
education remain the district of residence after the
pupil leaves juvenile hall because it was the district
of residence that developed the IEP recommending
placement in the residential treatment facility and the
juvenile court ordered the placement?
3) Why should a county office of education be responsible
to transition a pupil out of the residential treatment
facility ? This bill would require the county office of
education to be the district of residence while the
pupil is placed a residential treatment facility, and
therefore responsible for the pupil's IEP and transition
plan. Is it reasonable to require a county office of
education to have the responsibility to transition a
pupil into an educational placement twice removed from
the juvenile court school?
4) Why should a county office of education still be
responsible once the juvenile court no longer has
jurisdiction over the pupil ? The pupil's IEP determines
what instruction and related services the pupil is to
receive. A pupil's IEP must conclude that a residential
treatment facility is the most appropriate placement for
the duration of that placement. It is possible that the
juvenile court would relinquish its jurisdiction (drop
charges) while the pupil is in the residential treatment
facility. However, the pupil would still have an IEP in
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place that determines the most appropriate placement is
the residential treatment facility. Should the county
office of education continue to be the responsible local
education agency once the juvenile court no longer has
jurisdiction over the pupil?
5) Example of the problem . A summary of a case involving a
foster youth with special needs who has detained in
juvenile hall was submitted by proponents: "John" has
special education needs and while he was detained in
juvenile hall both of his parents abandoned him. The
Department of Mental Health recommended, and John's IEP
team agreed, to place John in a residential treatment
facility. The county office of education refused to pay
for this placement, contending they are responsible to
provide FAPE only while John is in juvenile hall.
John's prior school district refused to accept
responsibility because John was in juvenile hall. The
school district of John's mother's last known residence
refused to accept responsibility because John had never
lived at that residence. John remained in juvenile hall
for one year while the county office and two school
districts defended themselves against a due process
filing submitted by a law firm. John was eventually
ordered to a camp placement by the juvenile court judge.
6) District of residence . This bill declares that the
residence of a surrogate parent or judicially appointed
person to act as the "parent" for a pupil receiving
special education does not determine the school district
of residence. Proponents point to a court case that
ruled the district of residence for a pupil described in
this bill was the school district in which the pupil's
surrogate parent resided. The pupil had never resided
in that district or attended schools in that district.
Should the residence of a person with whom the pupil
does not reside ever determine the district of residency
for the pupil?
7) How many pupils could be affected ? Proponents believe
as few as 50-75 pupils would be affected by this bill.
8) Mandate . Legislative Counsel has flagged this bill as
imposing a mandate upon county offices of education.
9) Policy arguments :
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Proponents argue that current law creates
confusion as to which local education agency is
legally responsible for providing services required
under the federal Individuals with Disabilities
Education Act to foster youth who are detained in
juvenile hall, attend juvenile court schools, and
require residential placement due to their special
educational needs. As a result, these youth spend
inordinate amounts of time in juvenile hall without
appropriate special education services.
Opponents contend that the district of
residence has always been the school district in
which a pupil's custodial parent resides, this bill
shifts costs to county offices, and would have a
serious negative impact because county offices are
struggling to operate those programs within the
existing inadequate funding model.
SUPPORT
Augustin Egelsee, LLP
California Association for Parent-Child Advocacy
Center for Juvenile Law and Policy, Loyola Law School
Mental Health Advocacy Services, Inc.
Public Counsel Law Center
OPPOSITION
Los Angeles County Office of Education