BILL ANALYSIS
SB 1059
Page 1
SENATE THIRD READING
SB 1059 (Liu)
As Amended August 2, 2010
Majority vote
SENATE VOTE :33-0
EDUCATION 7-2 APPROPRIATIONS 14-3
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|Ayes:|Brownley, Nestande, |Ayes:|Fuentes, Conway, |
| |Ammiano, Arambula, | |Bradford, |
| |Carter, Eng, Torlakson | |Charles Calderon, Coto, |
| | | |Davis, |
| | | |De Leon, Gatto, Hall, |
| | | |Harkey, Skinner, Solorio, |
| | | |Torlakson, Torrico |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Miller, Norby |Nays:|Miller, Nielsen, Norby |
| | | | |
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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 for and providing FAPE:
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a) For pupils that have a biological or adoptive parent; a
legal guardian; 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 parent, surrogate parent,
or responsible adult holding educational rights, as
defined, the responsible district is the district in which
the pupil will be placed for the residential placement;
and,
c) For pupils who have a foster parent, surrogate parent,
or responsible adult holding educational rights, as
defined, and who are placed in an out-of-state residential
facility, the responsible district is 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 that
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
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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 provider of educational services if
the responsible school district fails or refuses 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.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1)General Fund/Proposition 98 (GF/98) state mandated costs,
likely less than $100,000, to COEs to notify school districts
of financial responsibility for a pupil with special needs who
was in a juvenile court school and has been placed in a
residential care facility, including the cost of establishing
an appeal process. In 2008-09, there were 64 juvenile court
schools with an enrollment of 12,347 pupils. There are less
than 75 foster care pupils with special needs who are placed
in a residential facility statewide in any given year.
2)Under current law, school districts and COEs are responsible
for providing pupils with special education services. This
bill attempts to clarify financial and programmatic
responsibility for foster care pupils with special needs who
have been detained in a juvenile hall and then placed in a
residential treatment facility. Therefore, this bill does not
represent a new GF/98 cost because a school district or COE is
currently required to pay for the education placement cost of
the pupil with special needs. It may, however, cause a shift
in financial responsibility from one district to another.
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.
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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 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
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
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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, in some cases,
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.
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, 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 youth in juvenile hall if the expanded
IEP team has determined that the youth needs a residential
placement due to his or her significant mental health issues.
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
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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."
Analysis Prepared by : Marisol Avina / ED. / (916) 319-2087
FN: 0005606