Legislature(2001 - 2002)

03/14/2001 08:03 AM EDU

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 71-EDUC. OF DISABLED OR GIFTED CHILDREN                                                                                    
CHAIR  BUNDE  announced the  committee  would  hear testimony  on                                                               
HOUSE BILL NO. 71, "An Act  relating to the education of children                                                               
with  disabilities  and  of  gifted  children;  relating  to  the                                                               
Governor's Council on Disabilities  and Special Education; making                                                               
conforming amendments; and providing for an effective date."                                                                    
Number 0156                                                                                                                     
BRUCE  JOHNSON, Deputy  Commission  of Education,  Office of  the                                                               
Commissioners,  Department  of   Education  &  Early  Development                                                               
(EED), came  forth and  stated that  HB 71  will bring  [the EED]                                                               
into  compliance with  the  federal  government requirements  for                                                               
special  education  and  will  allow [the  EED]  to  continue  to                                                               
receive  the  resources  available  at the  federal  level.    He                                                               
mentioned  that [the  EED] does  not  portray that  its money  is                                                               
currently in jeopardy with the  federal government; however, [the                                                               
EED]  is under  corrective action.   He  remarked that  last year                                                               
there was $11  million or $12 million in federal  dollars and now                                                               
there is about $19 million.  He  added that most of that money is                                                               
passed  on to  the individual  districts to  offset their  costs,                                                               
particularly  with students  who  have severe  disabilities.   He                                                               
added that [the EED] has  also attempted to differentiate between                                                               
children  with disabilities  and children  who are  identified as                                                               
gifted and talented.                                                                                                            
MR.  JOHNSON mentioned  that [the  EED]  had felt  there were  no                                                               
resources for  it to do  much with  the exceptional child  who is                                                               
identified as  gifted and  talented.   Therefore, it  was decided                                                               
that  since the  money was  going  to the  districts through  the                                                               
block  grant program,  [the districts]  should have  full control                                                               
with  what happens  with the  services they  elect to  provide to                                                               
gifted and talented children.  He  added that [the EED] had heard                                                               
from  a  strong constituency  that  wanted  the state  oversight;                                                               
therefore, there is a modest fiscal  note attached to the bill to                                                               
provide this  and other services  in the  area of GT  (gifted and                                                               
Number 0445                                                                                                                     
CHAIR BUNDE asked if [the EED]  would have a negative reaction if                                                               
"30 calendar  days" was  changed to "30  school days"  under IEPs                                                               
(individual education programs).                                                                                                
GREGORY MALONEY, State Director  of Special Education, Department                                                               
of Education  & Early Development,  answered that in  federal law                                                               
it  reads "30  days",  which is  calendar days.    He added  that                                                               
"school days" could be restrictive.                                                                                             
CHAIR BUNDE asked if [it would have  to be "30 days"] in order to                                                               
be in federal compliance.                                                                                                       
MR. MALONEY remarked  that [the EED] cannot  restrict the federal                                                               
CHAIR  BUNDE  stated that  [the  Anchorage  School District]  had                                                               
concerns about  due process, the one-tiered  hearing process, and                                                               
the additional costs.                                                                                                           
Number 0535                                                                                                                     
MR. MALONEY  replied that what  is in  place currently is  a two-                                                               
tiered hearing process.  If a  parent has a due process issue, he                                                               
or  she files  the request  with  the district,  which assigns  a                                                               
hearing officer.   Currently,  appeals come to  [the EED].   [The                                                               
EED] is proposing a one-tiered  system, in which it would receive                                                               
the requests for the due  process hearings and assign the hearing                                                               
officer through a  hearing officer selection process.   He stated                                                               
that the cost  concerns that the [Anchorage  School District] has                                                               
is in regard to whether the  hearing officer lives outside of the                                                               
Anchorage  area.   He  noted  that the  majority  of the  hearing                                                               
officers  live within  the Anchorage  area; therefore,  [the EED]                                                               
does not  believe that would  be a strong consideration  in terms                                                               
of the cost.   The legal fees that would be  charged would be the                                                               
same, presumably.   Therefore, the additional costs  would be for                                                               
transportation  if  the  [hearing  officer]  was  not  living  in                                                               
MR. MALONEY  stated that it  is not easy  for [the EED]  to track                                                               
the  due  process  issues when  the  districts  administrate  the                                                               
hearings.  He clarified that  [the proposed system] will make the                                                               
process cleaner and allow [the EED]  to track the issues in order                                                               
to address them through trainings and professional development.                                                                 
Number 0668                                                                                                                     
REPRESENTATIVE WILSON  asked whether the schools  could start the                                                               
due process so  that they don't have to wait  for any action from                                                               
[the EED].                                                                                                                      
MR. MALONEY answered that they do under the current system.                                                                     
REPRESENTATIVE WILSON asked if [the EED] wants to change that.                                                                  
MR. MALONEY replied that the  district would no longer assign the                                                               
hearing  officer;  [the EED]  would.    Therefore, the  districts                                                               
would not receive the initial requests from the parents.                                                                        
REPRESENTATIVE  WILSON asked  if that  occurs when  [the parents]                                                               
have gone  through the  due process  and something  hasn't worked                                                               
out at the local level.                                                                                                         
MR. MALONEY answered that under  the current system that would be                                                               
correct.   He clarified that [the  EED] would be involved  if the                                                               
district or the parent disagreed  with the decision regarding the                                                               
due process hearing.  Under  the proposed system, the [EED] would                                                               
initially assign the hearing officer.                                                                                           
Number 0766                                                                                                                     
REPRESENTATIVE WILSON asked whether,  under this new program, the                                                               
parents will  realize that they  don't initially go to  the local                                                               
school level for [requests].                                                                                                    
MR.  MALONEY  responded  that  if   the  districts  receive  [the                                                               
requests], they  will forward them  to the  [the EED].   He added                                                               
that  [the  EED]  will  provide trainings  for  the  parents  and                                                               
notification will  be in the  procedural safeguard  notice, which                                                               
parents receive.                                                                                                                
REPRESENTATIVE  WILSON  stated that  she  is  concerned with  the                                                               
limit of 30 days.                                                                                                               
MR. MALONEY responded  that the 30 days refers to  the IEP plans.                                                               
He clarified that the due process has a separate timeline.                                                                      
REPRESENTATIVE WILSON  asked if  this is essentially  taking away                                                               
some local control and giving it to the [EED].                                                                                  
MR. MALONEY explained  that in terms of the  due process hearing,                                                               
it would  be the [EED]  rather than the local  district assigning                                                               
the  hearing  officer.    He noted  that  the  first  significant                                                               
procedural  safeguard   is  a  process  called   mediation.    He                                                               
explained  that  anytime  [parents  and  school  districts]  have                                                               
disagreements over  a student's  educational program,  a neutral,                                                               
trained  mediator  is brought  in  and  the issues  are  resolved                                                               
through  communication.   He stated  that  the second  procedural                                                               
safeguard has to do with a  complaint investigation.  If there is                                                               
a disagreement,  an administrative  complaint can be  filed under                                                               
[the EED]  and a  trained complaint  investigator is  assigned to                                                               
the case who collects the information.   A report is then written                                                               
that may contain corrective actions if necessary.                                                                               
Number 0954                                                                                                                     
MR.  MALONEY  explained that  there  are  three formal  processes                                                               
provided to parents.  Due process  is the most significant one in                                                               
that it  tends to  be the most  "legalistic" and  most expensive.                                                               
He  added that  [the EED]  encourages  mediation as  well as  for                                                               
districts and parents to have  communication prior to this point.                                                               
He  noted   that  through  the   IEP  process  there   should  be                                                               
identification of issues that are  not working well.  He remarked                                                               
that [the EED]  would be concerned if the due  process hearing is                                                               
seen as the communication mechanism.                                                                                            
REPRESENTATIVE WILSON asked  where in the process  the school and                                                               
the parents try to work things out first.                                                                                       
MR. MALONEY  responded that  the best-case  scenario would  be in                                                               
the  IEP meeting,  where differences  are being  identified.   He                                                               
added that there are times when  this doesn't happen, and that is                                                               
where  these three  processes are  provided under  federal law  -                                                               
mediation, complaint  investigation, and  due process.   He added                                                               
that it is up to the parent to choose which one to pursue.                                                                      
REPRESENTATIVE WILSON asked  who would be picking up  the bill if                                                               
the [EED] has to be contacted for a due process [hearing].                                                                      
MR.   MALONEY  replied   that  the   districts  would   still  be                                                               
responsible  for  paying  for  the  due  process  hearings.    He                                                               
reiterated that one  of the reasons [for the new  process] is for                                                               
[the EED]  to know which  due process hearings are  occurring and                                                               
to track  the issues  regarding students  with disabilities.   He                                                               
noted that  this is  also to encourage  districts and  parents to                                                               
communicate prior to the point at  which a due process hearing is                                                               
being requested.  He added that  anytime a due process hearing is                                                               
requested, the hearing officer, by  law, has to notify the parent                                                               
of the availability of mediation.                                                                                               
Number 1163                                                                                                                     
REPRESENTATIVE WILSON  asked whether [the EED]  could mandate the                                                               
schools  to  inform  the  department every  time  a  due  process                                                               
hearing occurs,  since it seems  the only concern is  not finding                                                               
out about  them.   She also  asked if [the  EED] is  feeling that                                                               
[the process] is not being done properly in some areas.                                                                         
MR. MALONEY  replied that  there are some  concerns with  how the                                                               
process is  handled.  He  stated, in  terms of the  local control                                                               
issue,  that he  thinks  [the EED]  is in  line  with what  other                                                               
states have  done.   It would  be a more  efficient process.   He                                                               
added  that  the  costly  part would  come  from  [modifying  the                                                               
already implemented procedures].                                                                                                
Number 1238                                                                                                                     
REPRESENTATIVE  GREEN asked  if it  is possible  to get  somebody                                                               
outside the area of interest  since the random selection [for the                                                               
hearing officer] is from a statewide pool.                                                                                      
MR.  MALONEY  answered  that  the  pool  is  primarily  from  the                                                               
Anchorage  area.   He  noted that  [the EED]  has  tried to  have                                                               
regional representation.  Under this  system it would be a random                                                               
process  and  each  participant would  have  the  opportunity  to                                                               
randomly "bump" one person.                                                                                                     
REPRESENTATIVE  GREEN remarked  that he  is concerned  that there                                                               
will be  increased cost if a  complaint occurs out of  [a hearing                                                               
officer's] district.                                                                                                            
MR. MALONEY  replied that there  could potentially  be additional                                                               
costs.  He noted that  districts are currently paying for hearing                                                               
officers.  He  explained that in the current  system the district                                                               
will frequently  provide the names  of three  [hearing officers].                                                               
If  any are  disagreed  upon, then  the fourth  name  is the  one                                                               
REPRESENTATIVE GREEN remarked that it  seems [the EED] is working                                                               
toward an inefficient central control.                                                                                          
Number 1464                                                                                                                     
REPRESENTATIVE JOULE  asked where hearing officers  for the rural                                                               
areas are from.                                                                                                                 
MR.  MALONEY answered  that there  is a  pool of  trained hearing                                                               
officers who are primarily from the Anchorage area.                                                                             
REPRESENTATIVE JOULE asked  whether there would be  a cost anyway                                                               
for the rural districts.                                                                                                        
MR.  MALONEY  replied  that  it  depends on  the  nature  of  the                                                               
hearing.   He  explained that  hearings could  be conducted  in a                                                               
number of  ways for  costs to be  kept at a  minimum.   He stated                                                               
that the  hearing officers  will be  from the  same pool  [as the                                                               
current pool],  and the  only change  would be  the way  in which                                                               
they are assigned.                                                                                                              
REPRESENTATIVE  JOULE asked  if there  is a  perception from  the                                                               
parents, under the current way, that  there might be a bias [with                                                               
the hearing officers].                                                                                                          
MR. MALONEY answered that perceptions  of parents could certainly                                                               
be  that.   He  explained  that  this  is  why parents  have  the                                                               
opportunity  to exclude  certain hearing  officers.   He said  he                                                               
thinks this  will actually  be a cost  savings because  the [EED]                                                               
would be bearing  some of the administrative  costs for assigning                                                               
those  hearing  officers.    He   added  that  in  creating  this                                                               
legislation  [the EED]  consulted  with the  "parent in  training                                                               
information center," the governor's  council on special education                                                               
and  developmental disabilities,  and the  Disability Law  Center                                                               
[of Alaska],  none of which  expressed significant  concern about                                                               
this particular piece of legislation.                                                                                           
Number 1666                                                                                                                     
REPRESENTATIVE PORTER  stated that the  debate is over  a dispute                                                               
between parents  and a  school district, both  of whom  should be                                                               
advancing toward  resolution on equal  levels.  He  remarked that                                                               
if  the  parents, rather  than  the  school district,  [pick  the                                                               
hearing officers], the cost will virtually be the same.                                                                         
REPRESENTATIVE  GUESS  asked,  if  there's one  pool  of  hearing                                                               
officers, whether  the district or  the state is going  to choose                                                               
MR. MALONEY answered yes.                                                                                                       
REPRESENTATIVE  GUESS asked  if  there is  somebody the  district                                                               
would choose that is not in the state's pool.                                                                                   
MR.  MALONEY  answered  no,  and  said  the  state  is  currently                                                               
responsible for qualifying the hearing officers.                                                                                
REPRESENTATIVE GUESS  asked if the  state would conduct  a random                                                               
process  instead  of the  process  that  occurs at  the  district                                                               
level, which may or may not be random.                                                                                          
MR. MALONEY  replied that districts  would provide  [three] names                                                               
from a pool  of names.  The  parents can choose to  accept any of                                                               
the names;  if not, then  the fourth  name would be  the [hearing                                                               
officer] selected.                                                                                                              
Number 1779                                                                                                                     
REPRESENTATIVE GUESS asked how many hearings get appealed now.                                                                  
MR. MALONEY answered  that this information has  not been tracked                                                               
very well  because [the  EED] doesn't really  know the  amount of                                                               
hearings that are  occurring.  This year, so far,  there have not                                                               
been any  hearings that have been  appealed.  He stated  that the                                                               
option  of the  court is  always available.   He  added that  the                                                               
court may  direct a  person to exhaust  that appeal  process, and                                                               
due process can be settled prior  to the resolution.  This allows                                                               
[the EED] to better handle that information.                                                                                    
Number 1866                                                                                                                     
CHAIR BUNDE remarked  that it seems as if the  argument [that the                                                               
EED] wants  this [legislation]  for better  tracking is  a pretty                                                               
thin argument.   He  stated that [the  EED] could  simply request                                                               
that information through regulation.   He said he would feel more                                                               
comfortable  with [requests]  immediately going  to the  state if                                                               
[the EED] required mediation first.   He asked why this should go                                                               
to the supreme court before the district court.                                                                                 
MR. MALONEY answered that the  reason [mediation] is not required                                                               
is because  it is a voluntary  process by design.   Under the due                                                               
process procedures it is required  that parents are made aware of                                                               
[the option of] mediation by the hearing officer.                                                                               
CHAIR BUNDE asked if the courts might require mediation.                                                                        
MR. MALONEY answered  that the court could  require [the parents]                                                               
to enter into mediation, but [the EED] cannot.                                                                                  
Number 1971                                                                                                                     
REPRESENTATIVE PORTER remarked,  "If I were a  school district, I                                                               
would be inclined to try to take  care of all the local options I                                                               
had at my avail before I took this step."                                                                                       
REPRESENTATIVE  GREEN  commented  that  there  haven't  been  any                                                               
requests  to advance  because they  have been  handled under  the                                                               
current system.  He asked if  this is the type of situation where                                                               
"if the system ain't broke, fix it till it is."                                                                                 
MR. MALONEY answered that frequently  because of the costs of due                                                               
process  hearings   there  have  been  settlements   rather  than                                                               
completions of  due process hearings;  therefore, [the  EED] does                                                               
not necessarily  get information  on the  issues that  would have                                                               
been brought  up during those  hearings.  He clarified  that [the                                                               
EED] is aware  of complaint investigations that  come directly to                                                               
the  state.   [The EED]  assigns the  complaint investigator  and                                                               
does  the  report.    With mediation,  [the  EED]  gets  progress                                                               
reports from the mediation system about what the outcomes were.                                                                 
Number 2059                                                                                                                     
REPRESENTATIVE GUESS  asked if  some of  the benefits  for having                                                               
this at the state  level are to see trends in  the state of where                                                               
the  law isn't  being applied  the way  is should  be, to  see if                                                               
there  is a  lack  of training,  or  to see  whether  there is  a                                                               
problem in  a district with  implementing IDEA  (Individuals with                                                               
Disabilities Education Act).                                                                                                    
MR. MALONEY  answered that he  would agree.  The  primary purpose                                                               
of the due  process hearings is to make sure  that the individual                                                               
student program  is being implemented  appropriately.   [The EED]                                                               
is required to  report to the federal government  any due process                                                               
issues, complaint issues, and mediation  issues that come up.  He                                                               
added  that not  only  is it  a  compliance issue,  but  it is  a                                                               
training  issue and  a resource  issue.   He explained  that [the                                                               
EED]  is going  to use  the  resources available  to address  the                                                               
implementation  as to  whether there  are regional,  district, or                                                               
statewide trends.   He mentioned  that [the EED]  monitors school                                                               
districts by  going into  a district and  looking at  how special                                                               
education requirements are implemented.                                                                                         
Number 2177                                                                                                                     
REPRESENTATIVE WILSON stated that she  wants the whole process to                                                               
flow ,and  if the option of  due process is the  ultimate process                                                               
that takes  place, [everyone] should  know about it.   She stated                                                               
that she  is concerned about the  cost in the long  run and asked                                                               
if there are people trained in  areas "out in the fringes," or if                                                               
they would have to be flown in.                                                                                                 
MR. MALONEY  stated that  the pool of  hearing officers  would be                                                               
the  same  under  either  system  and there  wouldn't  be  a  big                                                               
difference in cost.   [The EED] does ongoing  recruiting in order                                                               
to have as big and as qualified  a pool as possible.  He said the                                                               
difference in  costs would primarily be  the administrative costs                                                               
associated with the school district  for doing the hearing, since                                                               
the staff time  would be transferred to [the EED].   The district                                                               
would be involved in the  hearings solely as a participant rather                                                               
than as a participant and an administrator.                                                                                     
Number 2304                                                                                                                     
CHAIR BUNDE asked  how many due process  [hearings] occurred last                                                               
MR. MALONEY  responded that he is  not aware of any  that came in                                                               
last year through the [EED] as an appeal process.                                                                               
CHAIR BUNDE asked whether, as a  result of the lack of reporting,                                                               
Mr. Maloney  was not aware  of any that  had gone through  at the                                                               
local level.                                                                                                                    
MR. MALONEY  answered that [the  EED] has a "spotted"  record, at                                                               
best in  terms of what happens  at the local level  regarding due                                                               
process.  He  stated that as of now, since  the district pays for                                                               
the  hearing  officer and  assigns  the  hearing officer,  it  is                                                               
difficult  for [the  EED] to  track because  there is  no upfront                                                               
information regarding whether  or not the hearing  has been filed                                                               
for in the first place                                                                                                          
TAPE 01-14, SIDE B                                                                                                              
Number 2343                                                                                                                     
REPRESENTATIVE STEVENS asked for a  rough overview of how much is                                                               
spent and received on special education.   He also asked how much                                                               
the  state and  the local  school districts  are involved  in the                                                               
cost of special  education or whether that is  covered by federal                                                               
MR. JOHNSON replied that the  20-percent block grant added to the                                                               
foundation program  is to cover  extra costs associated  with the                                                               
children  with disabilities  and  gifted  and talented  students;                                                               
bilingual  and  vocational  education  are added  to  that.    He                                                               
clarified that  those resources are earmarked  for those students                                                               
even though  they can  be spent  in any  area, since  there isn't                                                               
categorical funding.   He noted  that the federal  dollars, which                                                               
are anticipated  for next year in  excess of $19 million,  are to                                                               
help with the extraordinary  costs, particularly those associated                                                               
with  some of  the processes  that  are mandated  by the  federal                                                               
government as well as those  associated with children with severe                                                               
disabilities who may require full-time nurses.                                                                                  
MR. JOHNSON  remarked that depending  on the district,  some feel                                                               
the  money  has  adequately  met   the  needs  of  children  with                                                               
disabilities as  well as those who  are gifted and talented.   He                                                               
stated that he thinks other  districts are experiencing "erosion"                                                               
and  that the  costs continue  to go  up, particularly  with what                                                               
[the EED]  terms as intensive students.   He explained that  in a                                                               
formula,  there  is about  $20,000  for  each of  the  identified                                                               
intensive children  beyond any other  funding.  He  remarked that                                                               
[the EED] is hearing that  costs are escalating and more students                                                               
are  being identified,  particularly in  the intensive  category;                                                               
therefore, there are  costs to the state and to  the local school                                                               
districts.   He added that  [the EED] often gets  into challenges                                                               
with families where  a district attempts to narrow  its costs and                                                               
believes it  has a  program that meets  the students'  needs, but                                                               
where the  parents feel the  district is just being  a cheapskate                                                               
and that students may need  a program outside the local community                                                               
or a very specific program.                                                                                                     
MR. JOHNSON stated  that at the due process level,  a district is                                                               
inclined to want  to settle to ensure that the  student is served                                                               
as well as to protect the district's resources.                                                                                 
Number 2183                                                                                                                     
REPRESENTATIVE STEVENS said he is  not sure that diverting to the                                                               
parents is always  the best case because a  school district needs                                                               
to be advised for all the kids.   He remarked that he doesn't see                                                               
anything  in  the  bill concerning  the  districts  wanting  more                                                               
oversight from the [EED], and that  he is concerned with what the                                                               
[EED]  is  doing  in  terms  of  gifted  and  talented  programs,                                                               
staffing, as  well as dollars diverted  to the [EED] and  not the                                                               
school districts.                                                                                                               
MR.  JOHNSON  answered that  [the  EED]  has  heard from  the  GT                                                               
(gifted  and talented)  constituency  that they  would like  [the                                                               
EED] to be  involved in receiving the plan of  service for gifted                                                               
and  talented children,  which comes  to [the  EED] on  an annual                                                               
basis.   He  noted that  right now  [the EED]  receives this  but                                                               
there  is no  staff  to  review it  or  to  offer suggestions  or                                                               
technical  assistance   to  be  sure   that  it  meets   all  the                                                               
requirements of  the current  state statute.   He said  he thinks                                                               
[the  GET  constituents]  are  asking that  [the  EED]  get  more                                                               
involved  in   that  process.     He  mentioned  that   [the  GET                                                               
constituents]  would  like  [the  EED]  to  visit  districts  and                                                               
monitor  the programs.   He  added that  [the constituents]  also                                                               
want their  rights for due  process hearings and mediation  to be                                                               
available.  He remarked that [the  EED] does not have the dollars                                                               
to provide  mediation from the  state because [the EED]  does not                                                               
receive it  from the  federal government and  there are  no local                                                               
dollars to  support GT programs  in the  budget.  He  stated that                                                               
[the EED] is able to use  the due process training opportunity to                                                               
train  hearing officers  for GT  disputes as  well.   He remarked                                                               
that  the threat  of being  able to  participate in  the [GT  due                                                               
process hearing] makes  a big difference in  parents' capacity to                                                               
advocate for the needs of their children.                                                                                       
Number 2040                                                                                                                     
CHAIR BUNDE, referring  to the fiscal note,  stated that $103,000                                                               
is not relatively insignificant to the budget plans.                                                                            
REPRESENTATIVE STEVENS asked what  staffing would be necessary on                                                               
the district level to [fiscally]  provide the gifted and talented                                                               
programs and the IEPs due process hearings.                                                                                     
MR. JOHNSON  responded that [the  EED] is looking at  very modest                                                               
staffing to  provide that kind of  service.  In order  to monitor                                                               
and avoid excess costs and  additional state employees, [the EED]                                                               
would  contract with  a group  of  knowledgeable, trained  people                                                               
that would do the monitoring review.                                                                                            
REPRESENTATIVE WILSON asked if there is  a way for a parent to go                                                               
through a  due process [procedure]  if his  or her child  was not                                                               
excessively gifted, or did not have any handicaps.                                                                              
MR. JOHNSON  answered that there is  not a system set  up for the                                                               
[EED] to  accomplish that.  He  remarked that [the EED]  is often                                                               
requested to settle  local disputes of that nature,  but if there                                                               
is no direct authority, [the  parents] are directed back to their                                                               
local school districts.                                                                                                         
REPRESENTATIVE  WILSON  asked  whether  there is  a  process  for                                                               
[those parents] where [the EED] is not involved.                                                                                
MR. JOHNSON  stated that  he couldn't  speak for  every district.                                                               
He remarked that every district that  he has worked for has had a                                                               
public complaint process in which  [the parents] follow the chain                                                               
of command with their complaint;  if they are not satisfied, they                                                               
can ultimately request something before the local school board.                                                                 
Number 1892                                                                                                                     
REPRESENTATIVE WILSON asked if this process is in place already.                                                                
MR. JOHNSON answered yes.                                                                                                       
REPRESENTATIVE WILSON asked if a  [parent] of a "regular" student                                                               
as well as a parent of  a gifted student could go through several                                                               
processes in  order to be  heard and satisfied without  this bill                                                               
in place.                                                                                                                       
MR. JOHNSON  replied that  last year, specific  to GT,  [the EED]                                                               
suggested that there be processes at  the local level.  He stated                                                               
that  the  feedback  was  that   [the  parents]  felt  it  wasn't                                                               
satisfactory, and  they didn't want  to lose the rights  given to                                                               
them over  the last 30  years by being  included in this  area of                                                               
exceptional children.                                                                                                           
REPRESENTATIVE WILSON asked if something  new is put on this bill                                                               
whether  there would  be a  huge  jump in  cost [because  parents                                                               
would want to take advantage of it].                                                                                            
MR.  JOHNSON remarked  that [parents]  currently have  this right                                                               
under the  law.  Gifted  and talented students and  children with                                                               
disabilities are  lumped under a  single law  called "exceptional                                                               
children."  The  only thing that [the EED] has  done is split the                                                               
"exceptional child" title  into two divisions:   one for children                                                               
with disabilities,  the other for  children identified  as gifted                                                               
and talented.   [The EED]  has tried  to maintain all  the rights                                                               
that those families currently have.                                                                                             
CHAIR BUNDE explained  that the $100,000 fiscal  note would allow                                                               
gifted and talented students and  their parents to continue to do                                                               
what they do right now.                                                                                                         
REPRESENTATIVE WILSON asked why the bill is necessary.                                                                          
REPRESENTATIVE  GUESS responded  that [it  is necessary]  because                                                               
the federal government  changed the law so that  IDEA only refers                                                               
to children with  disabilities and no longer  includes gifted and                                                               
talented [children].                                                                                                            
MR.  JOHNSON stated  that the  federal government  never provided                                                               
any funds for  GT.  [The EED] tended to  commingle the funds, but                                                               
in an  audit was told  it could no longer  do that.   He remarked                                                               
that the  major reason for  this law  is to come  into compliance                                                               
with   new   federal   requirements   regarding   children   with                                                               
CHAIR BUNDE summarized that he  thinks Alaska, and probably other                                                               
states, chose  the category of  exceptional children in  order to                                                               
include special education and gifted  and talented students.  The                                                               
federal government says that the  money cannot be used for gifted                                                               
and  talented  [programs]  but  only  for  the  more  traditional                                                               
special education  services.   He remarked  that this  bill would                                                               
allow the parents  of gifted and talented children  to still have                                                               
the appeal process available to them as they had in the past.                                                                   
REPRESENTATIVE  WILSON asked  if  all children  have [the  appeal                                                               
process available].                                                                                                             
CHAIR  BUNDE responded  that [GET]  has the  same procedure  that                                                               
special education has, which is  more than the average child has.                                                               
He asked  Mr. Johnson  to give  his views  on the  description of                                                               
"least restrictive".                                                                                                            
Number 1682                                                                                                                     
MR.   JOHNSON  stated   that  [the   EED]  believes   the  "least                                                               
restrictive  environment"  clause  in  the  proposed  legislation                                                               
doesn't minimize  the opportunity for  a district to  serve those                                                               
kids outside  of their normal program.   In a number  of programs                                                               
in the  state, young people  spend their  entire day in  a single                                                               
center,  where   they  don't  necessarily  interact   with  other                                                               
children on  a regular  basis, but are  served individually.   He                                                               
stated that  [the EED]  believes the  IEP teams  have determined,                                                               
with parent involvement, that this  is an appropriate educational                                                               
environment; therefore, it is not overly restrictive.                                                                           
CHAIR BUNDE stated  that he has heard from parents  of gifted and                                                               
talented children  that they are concerned  that this legislation                                                               
would  preclude   special  classes  for  gifted   students.    He                                                               
explained that  this interpretation  of "least  restrictive" will                                                               
still  allow  the current  practice  of  having GET  classes  and                                                               
MR. JOHNSON remarked that this is [the EED's] interpretation.                                                                   
REPRESENTATIVE GUESS stated  that the change right  now would say                                                               
that the determination  of whether or not a child  should be sent                                                               
to an  educational program  or a  residential school  outside the                                                               
child's  community  or  school district  would  reside  with  the                                                               
school district and  not the department.  She stated  that she is                                                               
concerned that some districts may  not have the capacity in their                                                               
administrations to make those decisions.   She asked why this was                                                               
Number 1555                                                                                                                     
MR. MALONEY  explained that the  change was made to  reflect that                                                               
the IEP  team, rather than  [the EED], makes  that determination.                                                               
Any placement  decision that  has to do  with the  child, whether                                                               
the  student would  be  in a  regular classroom  or  in the  most                                                               
restrictive setting  such as an out-of-state  placement, would be                                                               
an IEP  team decision.   He  clarified, in  terms of  whether the                                                               
[EED] is involved,  that they have been working on  a more global                                                               
level with  districts and  other agencies  involved, particularly                                                               
with kids who are in state  custody, to help districts to address                                                               
those needs appropriately.                                                                                                      
REPRESENTATIVE GUESS  asked if that  has the same  appeal process                                                               
as all the others.                                                                                                              
MR. MALONEY  replied certainly, that anything  covered under IDEA                                                               
97 always has the same official complaint processes.                                                                            
Number 1496                                                                                                                     
REPRESENTATIVE WILSON  asked if [the EED,  regarding this special                                                               
due process  procedure] wants the  gifted to be pushed  under the                                                               
same "umbrella" as the special education students.                                                                              
MR. MALONEY  answered that  the due  process procedure  under the                                                               
existing  law is  the same  for  gifted and  talented, kids  with                                                               
disabilities, and  special education [students].   He stated that                                                               
the  change  to special  education  in  the double-tiered  system                                                               
would be  made to the  gifted procedures.  Therefore,  the gifted                                                               
would also become  a single-tiered procedure.   He explained that                                                               
the  difference with  gifted  due-process-hearing procedures,  as                                                               
opposed to the  special education due-process-hearing procedures,                                                               
is  that mediation  is  not  offered because  it  is a  federally                                                               
funded  IDEA  97  special  education process.    Instead  of  the                                                               
requirement  that  mediation  be  offered  during  a  gifted  due                                                               
process hearing, there  is a pre-hearing conference  at which the                                                               
parties would get  together to discuss their  needs and determine                                                               
whether  or not  a settlement  could  be reached  or whether  the                                                               
hearing  needs to  go  forward.   He  remarked  that  one of  the                                                               
purposes of the bill is to  clarify that some pieces do not apply                                                               
to GET that do to special education.                                                                                            
REPRESENTATIVE   WILSON   remarked   that   there   are   several                                                               
classifications of  children now:  gifted,  bilingual, vocational                                                               
education, and  special education.   She  stated that  the gifted                                                               
are being  singled out.   She  asked what is  being done  for the                                                               
bilingual and the vocational education.                                                                                         
MR.  MALONEY responded  that  [the EED]  is  not [including  them                                                               
under the same "umbrella"].                                                                                                     
REPRESENTATIVE WILSON asked if there  is the possibility that one                                                               
of  these groups  [bilingual or  vocational education]  would ask                                                               
why some groups are singled out while these are not.                                                                            
MR.  JOHNSON responded  that he  thinks that  one of  things that                                                               
distinguishes GET  and children with disabilities  from the other                                                               
two block-funding  categories is  a 30-year history  of including                                                               
them  under this  category of  exceptional children.   He  stated                                                               
that [the EED]  is trying to maintain that history.   He remarked                                                               
that  there are  no  specific federal  rights  for bilingual  and                                                               
vocational education  students to  be included;  that would  be a                                                               
local decision.   He added that there could be  a separate set of                                                               
statutes, outside  of t  hose for  exceptional children,  for GET                                                               
students, but the advocacy groups do not want this.                                                                             
REPRESENTATIVE WILSON again asked,  if nothing different is being                                                               
done, why there needs to be legislation.                                                                                        
MR. JOHNSON  responded that  [the EED]  is bringing  its statutes                                                               
into compliance  with the new  federal requirements  for children                                                               
with  disabilities.   In further  response, he  said [the  EED is                                                               
under corrective action.                                                                                                        
CHAIR BUNDE asked  if it is fair  to say that [the  EED] could be                                                               
brought under  compliance using all  the current funding  for the                                                               
initial special education  and by not putting GT  in its category                                                               
for appeals.                                                                                                                    
MR. JOHNSON answered that that would be correct.                                                                                
Number 1159                                                                                                                     
REPRESENTATIVE WILSON said it seems  that many things in the bill                                                               
do  not  have  to  be  done  in  order  to  comply  with  federal                                                               
MR. JOHNSON  replied that right  now there  is a set  of statutes                                                               
that  require   essentially  the   same  oversight   and  program                                                               
development that are in this bill.   He stated that this has been                                                               
happening for  30 years and  that constituencies would  like [the                                                               
EED] to continue to do that.   He added that this body could deal                                                               
with  GT in  a  very  different way  since  there  is no  federal                                                               
requirement for GT.                                                                                                             
REPRESENTATIVE WILSON asked if any funds would be lost.                                                                         
MR. JOHNSON stated no, there is no GT federal funding.                                                                          
REPRESENTATIVE WILSON  asked if  there would be  a change  in how                                                               
everybody [in GT] is treated in the school systems.                                                                             
MR. JOHNSON answered no.                                                                                                        
CHAIR BUNDE  remarked that this  would perpetuate the  status quo                                                               
and that  the legislature  could chose  to eliminate  the special                                                               
treatment of GET students.                                                                                                      
Number 1047                                                                                                                     
REPRESENTATIVE STEVENS asked  if there is going to  be any impact                                                               
from the [high  school] exit exam on special education.   He also                                                               
asked how a  student gets into special education [late  in his or                                                               
her school career].                                                                                                             
MR. JOHNSON answered  that under the current  law regarding pupil                                                               
competency,  special  education  students, other  than  the  most                                                               
severely disabled  children who will  not be on a  diploma route,                                                               
would have  to meet  the requirements  of the  exit exam.   Other                                                               
than enhancing the  capacity for learning, there  is no advantage                                                               
to being  identified as a  special education student.   He stated                                                               
that some of the current  proposals would treat special education                                                               
students differently in  relationship to the exit  exam and allow                                                               
more  IEP determination  on what  that  particular student  would                                                               
need to  qualify.  He  remarked that  there has been  the concern                                                               
that  there are  increased advantages  to being  identified as  a                                                               
child with  a disability and that  there would be a  surge in the                                                               
direction of identified such students.                                                                                          
REPRESENTATIVE  GUESS asked,  on the  federal level,  whether ASD                                                               
[Anchorage School  District] had discussed tackling  the issue of                                                               
discipline for students with disabilities.                                                                                      
MR. MALONEY  answered that the federal  regulations regarding the                                                               
special  education   IDEA  97  do  have   significant  pieces  on                                                               
disciplinary   actions  addressing   the  needs   of  kids   with                                                               
disabilities.   He stated that  [the EED] has  incorporated those                                                               
regulations into its existing regulations.   [The EED's] strategy                                                               
is to  identify the federal  statute guiding this  bill, indicate                                                               
that [the EED] is going  to implement the procedures contained in                                                               
the federal regulations, and address  that through regulation and                                                               
Number 0812                                                                                                                     
CHAIR  BUNDE  remarked that  there  were  a number  of  questions                                                               
brought up  at the  previous meeting  from committee  members and                                                               
those  who testified.   He  stated that  [the EED],  in response,                                                               
felt the  bill had been  crafted with  the client groups  in mind                                                               
and chose not to make any changes.   He said there are two issues                                                               
before [the committee].  One  is whether the committee should try                                                               
to solve  the problem  or stall  awhile since  there is  not much                                                               
pressure and there is no money  loss.  The other issue is whether                                                               
the committee would like to make  adjustments in the form of a CS                                                               
(committee substitute).                                                                                                         
Number 0724                                                                                                                     
REPRESENTATIVE  PORTER  made  a  motion  to  adopt  a  conceptual                                                               
amendment that  would strike  the word "fully"  on page  12, line                                                               
23, because he stated that parents will never be fully informed.                                                                
REPRESENTATIVE GUESS  asked if  there could  be some  language to                                                               
put  some onus  on  the school  district to  make  an attempt  to                                                               
inform the parents.                                                                                                             
REPRESENTATIVE  PORTER stated  that he  would accept  "reasonable                                                               
attempt to inform."                                                                                                             
REPRESENTATIVE JOULE asked  if notification by letter  would be a                                                               
reasonable attempt to inform.                                                                                                   
REPRESENTATIVE STEVENS remarked that this  has to do with the due                                                               
process  hearing;  therefore,  it  would  be  in  a  face-to-face                                                               
MR. MALONEY  stated that  this is  for any  action for  which the                                                               
parent is  signing consent.   He explained  that the  language is                                                               
there to  make sure  that the parent  has [given]  full, informed                                                               
consent.    He clarified  that  there  is reasonableness  in  the                                                               
standard in trying to do that.                                                                                                  
CHAIR BUNDE stated that there will  need to be some clarity as to                                                               
whether this is  federal language or not.  He  announced that the                                                               
proposed amendment was [tabled].                                                                                                
Number 0492                                                                                                                     
REPRESENTATIVE PORTER  asked what the language  "creative talent"                                                               
means on page 17, line 16, when defining gifted children.                                                                       
MR. JOHNSON  responded that  the fine  arts and  creative talents                                                               
are  in existing  law and  so that's  been carried  forward.   He                                                               
added that  there are  districts that  are providing  services to                                                               
identified  students  with  those particular  talents,  not  just                                                               
academic  talents.     He   clarified  that   it  would   be  the                                                               
extraordinary  talents  that  the   districts  would  be  looking                                                               
CHAIR  BUNDE asked  if this  would be  a local  option to  define                                                               
MR. JOHNSON answered that it would.                                                                                             
REPRESENTATIVE GUESS remarked that she  is confused about what is                                                               
[federally required] and  what is not in the bill.   She asked if                                                               
it would be possible to have that determination.                                                                                
MR. JOHNSON responded that [the  EED] has prepared a side-by-side                                                               
analysis to  highlight what is  a federal [requirement]  and what                                                               
is flexible  at the  state level.   He  added that  all of  GT is                                                               
under local state control.                                                                                                      
CHAIR BUNDE  clarified that if  a section  of the bill  refers to                                                               
gifted and  talented, it is a  local option, and if  it refers to                                                               
special education, it is a federal requirement.                                                                                 
Number 0179                                                                                                                     
REPRESENTATIVE PORTER  stated that he assumes  "informed consent"                                                               
applies to  children with disabilities  as well as to  gifted and                                                               
talented.  He  asked:  If it is federal  language, which would be                                                               
interpreted  to  be  a  reasonable standard,  why  can't  it  say                                                               
["reasonable"]   instead  of   leaving   the  ambiguous,   easily                                                               
litigated "fully"?                                                                                                              
MR. JOHNSON responded  that the definition under  the federal law                                                               
states:   The parent has  been fully informed of  all information                                                               
relevant to  the activity to  which consent  is sought in  his or                                                               
her native language or other mode of communication.                                                                             
REPRESENTATIVE  PORTER asked  whether, if  the committee  changes                                                               
one word - "reasonable" - [the bill] would be in violation.                                                                     
MR.  JOHNSON answered  that he  thinks there  is some  discretion                                                               
along the same notion of reasonableness.                                                                                        
Number 0074                                                                                                                     
PHILIP  REEVES,   Assistant  Attorney  General,   Human  Services                                                               
Section, Civil Division (Juneau),  Department of Law, stated that                                                               
everything that is  in federal statutes and  regulations is still                                                               
going  to apply  to  whatever is  put in  the  state statute  and                                                               
regulations.   For example, parents  have a concern with  how the                                                               
Anchorage School  District is providing  education to his  or her                                                               
child, or what type of consent  they've been given, they can cite                                                               
to the  state law or  the federal law,  and the court  will grant                                                               
whatever gives  the person  the greatest  protection.   He stated                                                               
that there doesn't  need to be identical language;  in this case,                                                               
he said, there isn't the  risk of inconsistent provisions because                                                               
it  would  default  to  the   federal  provision,  which  clearly                                                               
provides the  term "fully" within  it and has  a "reasonableness"                                                               
component.   He  commented that  one of  the suggestions  is that                                                               
this should  be done in all  cases not cited to  the federal law;                                                               
however, he said,  his concern is that if there  is not identical                                                               
language sooner or later there will be inconsistent provisions.                                                                 
REPRESENTATIVE PORTER asked  if a dispute in this  area that ends                                                               
up in state court would be a dispute over the state law.                                                                        
TAPE 01-15, SIDE A                                                                                                              
MR. REEVES answered  that IDEA gives the option to  the parent to                                                               
bring an  action in either state  or federal court.   The federal                                                               
law would  be applied  in the  state court,  and the  federal law                                                               
would be looked to for interpretation to the state law.                                                                         
REPRESENTATIVE PORTER asked why the  committee is passing a state                                                               
law, then.                                                                                                                      
MR.  REEVES  stated  that the  federal  government  has  mandated                                                               
states  to implement  a state  program.   Rather  than trying  to                                                               
restate  this, the  law is  just citing  to it.   There  are some                                                               
areas  where there  are  flexibilities to  the  state, where  the                                                               
state  has provided  more protections  than the  federal law,  or                                                               
where  there's  flexibility  in  some  areas  to  have  different                                                               
procedures.   He remarked that most  areas in the state  law deal                                                               
with those type  of things where the state has  some option as to                                                               
how it  wants to  run a program.   In the  areas where  the state                                                               
doesn't have an  option, it has been "compacted" in  this bill to                                                               
cite to the federal law.                                                                                                        
Number 0243                                                                                                                     
CHAIR BUNDE  asked if it  would be accurate  to say that  this is                                                               
being done  only to  maintain some advantage  for the  gifted and                                                               
MR. REEVES  replied that there are  two sections:  a  section for                                                               
children  with disabilities  and a  section for  gifted children.                                                               
He  stated  that  almost  all  of the  proposed  changes  in  the                                                               
children-with-disabilities section are  tweaking the current laws                                                               
to get into compliance with the new  language of IDEA 97.  In the                                                               
gifted section,  the intent  has been to  carry over  the current                                                               
program.    Under  the  current  law there  isn't  a  gifted  and                                                               
disabilities  section; it's  just for  exceptional children.   He                                                               
stated that  some of  the problems exist  because as  the federal                                                               
law  provides more  protections or  more complex  procedures, the                                                               
current law applies those all to  the gifted children.  He stated                                                               
that even  parents of gifted  children don't consider that  to be                                                               
reasonable.  For  example, they don't care  for least restrictive                                                               
environment, which is a fundamental  principle of federal law for                                                               
children with  disabilities.  He  explained that that is  part of                                                               
the reason for  separating these out, to continue  to comply with                                                               
the federal  requirements for children  with disabilities  but to                                                               
not  have to  necessarily apply  requirements that  are not  very                                                               
reasonable to the gifted program.                                                                                               
REPRESENTATIVE PORTER stated that  he doesn't understand why [the                                                               
committee]  is doing  anything if  a  case in  state court  would                                                               
still defer to the federal language.                                                                                            
Number 0468                                                                                                                     
Chair  BUNDE remarked  that [without  the  legislation], the  GET                                                               
wouldn't be  continued.  He  asked if there are  court precedents                                                               
that cover reasonableness under "fully informed."                                                                               
MR.  REEVES answered  that  much  of the  case  law is  scattered                                                               
across the  country; some is in  state court, some is  in federal                                                               
court, and  some is under  the due  process proceedings.   All of                                                               
those  types  of cases  are  brought  forward  in a  due  process                                                               
hearing or in  court to be suggested as precedent  that should be                                                               
followed.   He  remarked that  he is  not aware  that there  is a                                                               
Ninth Circuit [Court of Appeals] case that deals with that.                                                                     
REPRESENTATIVE  GREEN  asked if  [the  committee]  is creating  a                                                               
problem  by  having  [informed  consent]  reiterated  in  statute                                                               
within Alaska.                                                                                                                  
MR.  REEVES responded  yes.   He remarked  that removing  "fully"                                                               
from  the definition  will  not  cause a  great  problem, but  he                                                               
doesn't believe it is going to  change how it is interpreted.  If                                                               
federal law  were to change, then  the state wouldn't be  tied to                                                               
language in that way.                                                                                                           
REPRESENTATIVE GUESS  asked what  the timeline is  to comfortably                                                               
deal with the issues [the committee] may have.                                                                                  
MR. JOHNSON  stated that he thinks  it is a year-by-year  call as                                                               
to whether or  not [the EED] is in jeopardy  of not receiving the                                                               
Number 0619                                                                                                                     
CHAIR BUNDE remarked that there isn't  a sense of urgency at this                                                               
point that would require [the  committee] to do something that it                                                               
is not entirely comfortable with.                                                                                               
REPRESENTATIVE WILSON  stated that  she doesn't know  what school                                                               
districts, across the state, think about all of this.                                                                           
REPRESENTATIVE  PORTER remarked  that  he has  a  bias about  the                                                               
gifted and talented  program in general because  it seems there's                                                               
a lot  of things preferential to  a group that seems  to need the                                                               
least amount of individual help.                                                                                                
REPRESENTATIVE GUESS shared that her  neighbor who is nine or ten                                                               
years  old  was  in  the   elementary  school  in  her  district,                                                               
Anchorage.  He  had a 130 IQ  and sat in second  grade bored with                                                               
teachers who said  they weren't trained to  teach him; therefore,                                                               
he turned off at school and  stopped doing work.  She stated that                                                               
his parents were distraught and  couldn't get a response from the                                                               
school  district.   She remarked  that [the  state] does  have an                                                               
obligation to these children.                                                                                                   
[HB 71 was held over.]                                                                                                          

Document Name Date/Time Subjects