BILL ANALYSIS
SB 1059
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Date of Hearing: June 30, 2010
ASSEMBLY COMMITTEE ON EDUCATION
Julia Brownley, Chair
SB 1059 (Liu) - As Amended: May 28, 2010
SENATE VOTE : 33-0
SUBJECT : District of residence: foster youth in juvenile hall
SUMMARY : Clarifies which local educational agency (LEA) is
responsible for the provision and payment of special education
services for pupils with disabilities in the foster care system
that have been detained in a juvenile hall and who are
subsequently placed in a residential treatment facility.
Specifically, this bill :
1)States that for a pupil placed in a licensed children's
institution (LCI), or a licensed foster home, or a family
home, as specified, the school district in which the pupil
resides is the district of residence and assigns that district
responsibility for providing that pupil with a free
appropriate public education (FAPE).
2)Provides that for pupils in juvenile hall, the county board of
education shall be responsible for the provision of FAPE for
pupils with disabilities, however if a determination is made
that residential placement is appropriate, the following shall
apply regarding which school district is responsible for
paying and providing FAPE:
a) For pupils that have a biological or adoptive parent; a
guardian or responsible adult holding educational rights;
or an individual acting as a parent, including a
grandparent, stepparent, or other relative or an individual
who is legally responsible for the child's welfare, the
responsible district is the district in which that parent,
guardian, or individual resides.
b) For pupils who have a foster or surrogate parent, as
defined, the responsible district is the district in which
the pupil will be placed for the residential placement.
c) For pupils who have a foster or surrogate parent and who
receive a placement to an out-of-state facility, the
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responsible district is be the last district in which the
pupil was enrolled prior to the pupil's detainment in
juvenile hall.
3)Requires the county office of education (COE) to determine the
responsible school district, as specified, and to notify the
district of its responsibility, and stipulates that the
responsible school district shall remain the district of
residence for that pupil throughout the duration of the
residential placement, including, as necessary, after
disposition of the pupil's juvenile delinquency case.
4)Requires the responsible school district to transition a pupil
into a subsequent education placement if a determination is
made that a less restrictive environment is appropriate for
that pupil, including by creating a transition plan, as
specified.
5)Provides that in cases of disputes regarding responsibility
for education placement or services, the responsible school
district shall implement the individualized education program
(IEP), including, but not necessarily limited to, paying and
providing for the education placement and any other related
service, during the duration of the dispute.
6)Allows impacted districts to appeal the designation of
responsibility to the county board of education, which is be
required to issue a decision within 60 days and provides that
the decision is final.
7)Allows the county superintendent of schools to draw a
requisition against the funds of the responsible school
district in favor of the county office of education if the
responsible school district fails or refused to assume the
educational costs, as specified.
8)Stipulates that for children who are placed in a LCI, or a
licensed foster home, or a family home, the school district of
residence is the school district where the child resides, and
states that the residence of a surrogate parent appointed
pursuant to current law or of the person responsible for
making educational decisions for the child does not determine
the school district of residence.
EXISTING LAW :
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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;
or,
e) A pupil residing in a state hospital located within the
boundaries of that school district.
2)Authorizes, until July 1, 2012, a school district to 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.
3)Requires the county board of education to administer and
operate juvenile court schools.
4)Requires, when an assessment determines that a pupil is
seriously emotionally disturbed (SED) and any member of the
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.
5)Requires the Superintendent of Public Instruction (SPI) to
ensure that LEAs provide special education, related services,
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.
6)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 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.
7)Defines "parent" for purposes of special education as any of
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the following:
a) A biological or adoptive parent of a child;
b) A foster parent if the authority of the biological or
adoptive parents to make educational decisions on the
child's behalf specifically has been limited by court
order;
c) A guardian generally authorized to act as the child's
parent, or authorized to make educational decisions for the
child, including a responsible adult appointed for the
child;
d) An individual acting in the place of a biological or
adoptive parent, including a grandparent, stepparent, or
other relative, with whom the child lives, or an individual
who is legally responsible for the child's welfare; or
e) A surrogate parent who has been appointed; as specified.
8)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; or,
c) The LEA, after reasonable efforts, cannot discover the
location of a parent.
9)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 FAPE to the
pupil.
FISCAL EFFECT : According to the Senate Appropriations
Committee, as LEAs are already responsible for the provision of
special education services, the clarification of responsibility
in these narrow instances (there are perhaps fewer than 100
cases, statewide) does not represent a new cost, though it may
result in a shift of costs among LEAs in some instances. There
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is a potential that county offices of education would file
mandate claims pursuant to the responsibility for notification
and for the handling of any appeals that may arise, but these
costs would likely be minimal given the small number of pupils
affected by the bill.
COMMENTS : Under the Individuals with Disabilities Education Act
(IDEA), every pupil with disabilities is entitled to FAPE in the
least restrictive environment (LRE). Special education and
related services are provided as specified in a pupil's IEP.
This bill seeks to clarify the law with regard to the
responsibility of providing special education services to
parentless youth who have been detained in juvenile hall, are
eligible for special education services and for whom there has
been a determination by an expanded IEP team that a residential
placement would be the most appropriate placement for the youth
due to significant mental health issues.
When a pupil is detained in juvenile hall, the county office of
education (COE) is responsible for providing education services
to that pupil, including special education services for eligible
pupils. When an expanded IEP team that includes mental health
experts determines that the pupil would be best served through a
residential placement, which could be an out-of-state placement,
the district in which his or her parents live would then be
responsible for providing special education services to that
pupil. In cases in which the pupil is "parentless," however,
the law is ambiguous as to which LEA is responsible for
providing special education services, and these disputes have
resulted in lengthy due process hearings. The proponents of
this bill argue that in various situations, the youth have
remained detained in juvenile hall for extended periods of time
while the issues are being disputed.
Inconsistent decisions : Several cases have gone before the
Office of Administrative Hearings (OAH) regarding this matter
and the decisions made by the Administrative Law Judges (ALJs)
have varied widely. While some decisions have assigned the
responsibility to a school district in which a pupil's
educational guardian or other court appointed legal
representative resides, others have assigned it to the COE where
the juvenile hall is located, and some to the California
Department of Education (CDE). In reviewing several of the
cases, it appears that in making these conclusions, the judges
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have generally looked at existing law which requires a child to
attend school in the school district where the parent or
guardian resides, and at federal and state laws and regulations
defining "parent" for special education purposes. The Education
Code, consistent with IDEA law and regulations, defines "parent"
as a biological or adoptive parent of a child; a foster parent;
a guardian generally authorized to act as the child's parent, or
authorized to make educational decisions for the child,
including a responsible adult appointed for the child; an
individual acting in the place of a biological or adoptive
parent, including a relative with whom the child lives, or an
individual who is legally responsible for the child's welfare;
or a surrogate parent. In assigning responsibility to a school
district for the provision of FAPE to a pupil, judges have
determined that the district in which a pupil's parent, legal
guardian, or any other individual meeting the definition of
"parent" resides is the district of residence for these
purposes. There are various exceptions to this specified in the
current law, but not all of the cases that have gone before OAH
fall within those exceptions.
The decisions that have assigned the responsibility to COEs have
made the arguments that because the COE is responsible for
providing educational services for students while they are
"detained" in juvenile hall, the COE should remain responsible
for providing those services, when no other responsible LEA can
be identified. Additionally, the argument has been made that
the COE may have been involved in the development of the IEP
placing students in a residential treatment facility and
therefore should maintain responsibility after the youth leaves
juvenile hall. Lastly, in cases in which CDE has been found to
be the responsible entity for the provision of FAPE, the
arguments have been made that since such students have no
"parent" under state law and therefore have no district of
residence for assigning responsibility for special education
services, then CDE as the state education agency is responsible
for this gap. The lack of clarity in the law have resulted in
inconsistent OAH decisions and thus pointing to a need for
legislation to provide this clarification.
This bill clarifies which LEA is responsible for providing
education services for a child in the juvenile hall if the
expanded IEP team has determined that the child needs a
residential placement due to his or her significant mental
health issues, as follows:
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a) For pupils that have a biological or adoptive parent; a
guardian or responsible adult holding educational rights;
or an individual acting as a parent, including a
grandparent, stepparent, or other relative or an individual
who is legally responsible for the child's welfare, the
responsible district is the district in which the parent,
guardian, or individual acting as parent resides.
b) For pupils who have a foster or surrogate parent, as
defined, the responsible district is the district in which
the pupil will be placed for the residential placement.
c) For pupils who have a foster or surrogate parent and who
receive a placement to an out-of-state facility, the
responsible district is the last district in which the
pupil was enrolled prior to the pupil's detainment in
juvenile hall.
Roles of legal guardians and responsible adults : In situations
in which the court has limited the rights of parents to make
educational decisions for a child who is under the jurisdiction
of the court, the court is required to appoint a responsible
adult to make educational decisions for that child. A legal
guardian with whom the child lives has a different legal
responsibility than the responsible adult, who is appointed only
to hold educational rights for the child. This bill assigns
responsibility of providing FAPE for pupils who have a parent,
legal guardian or responsible adult to the school district in
which that parent, guardian or responsible adult lives. For
pupils who have a responsible adult holding educational rights,
it may not be appropriate to hold the district of that person's
residence responsible for paying the special education costs
because the pupil may have never attended that district and thus
that district may not have any prior history with or knowledge
of the child. Furthermore, in some instances the individuals
who are appointed to hold educational rights are volunteers,
similar to surrogate parents. In the case where the responsible
adult holding educational rights is a Court Appointed Special
Advocate (CASA), for example, this provision may complicate the
situation because a CASA's residential address is confidential.
Staff recommends an amendment to separate responsible adults
from the same category as parents and legal guardians and rather
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put responsible adults in the same category as surrogate parents
for purposes of this bill. The amendment would provide that in
situations in which a pupil has a responsible adult appointed to
make educational decisions for that pupil, the responsibility
for FAPE should be placed on the district where the residential
placement is located and in situations in which an out-of-state
placement is determined to be in the best interest of the child
by the expanded IEP team, the responsibility should be placed on
the district where the pupil last attended school. This will
ensure consistency with the way this bill treats situations in
which the pupil is assigned a surrogate parent.
The youth that this bill addresses have significant mental
health and emotional needs, and if indeed these pupils are being
detained in juvenile hall unnecessarily as a result of this lack
of clarity in the law, this bill will provide clarity to resolve
these concerns. Additionally, the ongoing due process hearings
and litigation result in added costs to districts and
potentially increased costs of incarceration time for youth with
special needs.
The author states, "For youth who are detained in juvenile hall,
attend juvenile court schools, and require residential placement
due to their special educational needs, current unclear laws
make it difficult to determine which local education agency is
legally responsible to provide services required under the
Individuals with Disabilities Education Act (IDEA). This problem
is exacerbated when the student is a foster youth, former foster
youth or parentless youth."
Suggested amendments : Staff recommends the following technical
amendments:
1) Throughout the bill, there are references to federal
code and regulations governing IDEA as these provisions
exist at one point in time. The point-in-time reference is
inconsistent throughout the bill. In some sections the
point-in-time reference is January 1, 2011 and in others it
is January 1, 2010. It is the intent of the author,
however for the bill to make reference to these provisions
as they currently exist. Thus the year in these references
should be changed to "2010" in pages 3 and 6.
2) On page 7, line 33, strike out "residential" from
"residential juvenile hall."
3) On page 8, line 18, "individual education program" is
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the incorrect term for an IEP, it should read
"individualized education program."
4) On page 8, line 30, strike out "refused" and insert
"refuses."
5) On page 8, line 33, there is a reference to "county
office of education" remaining from a previous version of
the bill which held the county office of education
responsible for special education costs. To conform the
bill to the current contents, strike out "county office of
education" and insert, "provider of educational services."
Additional author's amendment : The author believes an amendment
is necessary to clarify the law and make language consistent
regarding LEA responsibility for children who have parents and
are placed in licensed children's institutions. This Committee
may wish to consider the following additional amendment offered
by the author:
Amend Education Code Section 48204 to clarify which LEA is
responsible for paying and providing for education services for
an out of state residential placement for a child who has a
parent or legal guardian but is placed in a group home.
Arguments in support: Mental Health Advocacy Services, Inc.
writes, "Due to the failure of school districts to accept
responsibility for the residential placement of youth like John,
many of these cases have been brought to Due Process proceedings
before the Office of Administrative Hearings. These proceedings
are not only time consuming, delaying a youth's receipt of
services to which he is legally entitled and therapeutically in
need, but they waste valuable funds of the state, education
agencies, and nonprofit agencies (few of these youth come from
families that can afford private attorneys). In addition to
legal fees, juvenile hall placement is one of the most expensive
placements for a child. In most of these cases, there is
already consensus that the youth do not belong in detention,
thus there is no reason that these scarce public funds should
continue to be wasted litigating which agency is responsible
while denying vitally needed services."
Arguments in opposition : The Special Education Local Plan Area
(SELPA) Administrators oppose this bill and write, "The
membership is concerned that holding the district of residence
prior to incarceration responsible for the educational costs for
an out-of-state residential placement upon exiting JDF [juvenile
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detention facilities] would be inappropriate given that many of
these students have come into the prior district only days
before offending. Further, the current language holds the
district prior to JDF responsible for these costs indefinitely.
Given that government code 26.5 obligates school districts to
take the Local Mental Health's recommendations as pertains to
mental health services (including out-of-state residential
placements) the districts have no opportunities to recover these
students and educate them in a less restrictive environment."
Additionally, the SELPA Administrators argue that "the SEA
[state education agency] should be authorized to utilize IDEA
funds for the purpose of funding the educational cots of the
out-of-state residential placement, and the educational costs
only. Clinical costs and residential costs should remain the
responsibility of county government, pursuant to current law and
consistent with the current language in this bill."
However, current law excludes the state from the definition of
"parent" for purposes of special education. The CDE allocates
special education funding to LEAs to provide these services to
children as LEAs have the responsibility, under state law, of
providing special education services to eligible pupils.
REGISTERED SUPPORT / OPPOSITION :
Support
California Association for Parent-Child Advocacy
Center for Juvenile Law and Policy
Children's Advocacy Institute
Children's Law Center of Los Angeles
Mental Health Advocacy Services
National Center for Youth Law
Public Counsel
Individual
Opposition
Orange County Department of Education
Special Education Local Plan Area Administrators
Analysis Prepared by : Marisol Avi?a / ED. / (916) 319-2087
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