Legislature(1999 - 2000)
03/23/2000 03:03 PM House HES
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* first hearing in first committee of referral
+ teleconferenced
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+ teleconferenced
= bill was previously heard/scheduled
HB 301 - EDUCATION OF EXCEPTIONAL CHILDREN Number 1468 CHAIRMAN DYSON announced the next order of business as House Bill No. 301, "An Act relating to the education of exceptional children; and providing for an effective date." Number 1458 BRUCE JOHNSON, Deputy Commissioner of Education, Department of Education & Early Development, came forward to testify. He read the following testimony: We believe the passage of this bill is important for Alaska's children, especially the children with disabilities in our state who benefit directly from services supported by this legislation. As many members may be aware, the Individuals with Disabilities [Education] Act (IDEA) was enacted by Congress in 1990. The Alaska Legislature adopted the present IDEA statutes in 1993 to conform to the first federal IDEA. The federal IDEA was extensively amended in 1997 with the federal regulations interpreting that amendment published in the summer of 1999. We are now considering the amendments of the state IDEA statutes to ensure conformance with the new, stronger, and more detailed federal law. As members have no doubt determined, HB 301 provides considerable reference to federal IDEA, which we believe is a good strategy, particularly when recognizing that federal IDEA fills over 48 pages, accompanied by IDEA regulations that fill another 75 pages. The department believes that the bill's strong reference to federal IDEA appropriately strengthens our state statutes and ensures that available federal resources are available for Alaska's students. The bill, as written, clarifies the state role in education of our exceptional children and provides the opportunity, if signed into law, to ensure that the state is in compliance with federal IDEA. This bill repeals inconsistencies with federal law and offers clear guidance and assistance to school districts in delivering services to special education students. Finally, this bill clearly defines its services for gifted and talented students are the responsibility of the individual school districts and are not required or financially supported by federal government. Thank you for the opportunity to provide an overview of HB 301. I'd be happy to answer any questions and would invite Dr. PJ Ford Slack, our state special education director forward to assist. CHAIRMAN DYSON refreshed the committee's memory: "As I remember, the state has had a couple three years to kind of get on top of this. Got started a bit late. The person who was working on it ... quit or disappeared ... so there [are] lots of unfortunate things that happened to bring us to this apparent near-crisis, and the administration represents that if we don't get this done, we will be disqualified for how many million dollars?" Number 1300 MR. JOHNSON indicated the department has just received notification today that next year's allocation will be $14.3 million. CHAIRMAN DYSON noted that he and Senator Miller, Chairman, Senate Health and Social Services Committee, wrote to Senators Murkowski and Stevens asking if there was any possibility of a waiver, and they got a negative response. CHAIRMAN DYSON announced this bill will not be moved today. The intention is to hear from advocacy groups who have worked on this and submitted criticisms and suggestions and questions. The Department of Education & Early Education wants to hear the testimony and has committed to working over the weekend and coming up with a committee substitute for Tuesday's meeting. There will be an attempt to get all the information out to the interested parties so when this is brought up on Tuesday, people will have a chance to testify on the near-final piece of legislation. Number 1181 RIC IANNOLINO, Board Member, PARENTS, Inc., came forward to testify. He explained there are 20,000 children in Alaska's schools that receive IEPs [Individual Education Plan] that are covered by the IDEA. Some of the state laws and regulations have inconsistences with IDEA, and this does make it a cleaner, easier way of dealing with laws in general. CHAIRMAN DYSON asked Mr. Iannolino what the mission of PARENTS, Inc. is. MR. IANNOLINO answered that the mission of PARENTS, Inc. is to assist parents of children with disabilities to receive the services they are entitled to in schools. It is advocacy, training, and it supports services and information about parents being able to assist their children with specific disabilities. CHAIRMAN DYSON asked Mr. Iannolino if this was a federally mandated organization or was there some enabling federal legislation that puts organizations like this into place. MR. IANNOLINO said it is a national organization, and it is named in IDEA as a resource. The group is funded by a federal grant. He further answered a question from Representative Green that it includes both physical and mental disabilities. Number 1076 MR. IANNOLINO noted his organization is concerned with the issue of losing the federal funds if the state doesn't comply. PARENTS, Inc. is currently under the Office of Special Education Programs (OSEP). If they were to lose that much money [$14.3 million], there is a more draconic issue here. If services aren't provided to families with children with disabilities because the special education programs won't have the money, the money will have to come out of the general fund. In addition to that, something that is more frightening, and no one wants to happen, is that parents will probably file lawsuits, which means millions and millions of dollars of more money that would be drained out of education in this state if the state doesn't come in compliance, and the special education money is lost. Without the special education money, schools will not be able to provide the services to the children and families that IDEA requires. CHAIRMAN DYSON asked Mr. Iannolino to highlight the areas in the bill that he has concerns about that need to be modified in some way. MR. IANNOLINO said PARENTS, Inc. would present written testimony. Number 0937 STEVE ESSLEY, Special Education Attorney, Disability Law Center of Alaska, testified via teleconference from Anchorage. He read the following testimony: State law concerning education for Alaskan children with disabilities should not conflict with the revision of the federal IDEA. We believe the following sections of the bill should be revised. Section 3. [Obligation to provide special education: enrollment versus residence]. This change is not required in order to ensure compliance with federal law. But we understand that the federal office of special education programs suggested a revision regarding Alaska's unique correspondence school. The side-by-side dated February 9 ... said this proposed change clarifies this statewide correspondence programs are responsible. The Governor's letter to President Pearce states that "correspondence schools will have to be creative in providing special education and may have to contract with the home school." Unfortunately, the change in the legislation goes far beyond statewide correspondence programs. This change is a shift from an obligation to deliver special education and related services based on residence to an obligation based on enrollment. This will likely lead away from community-based inclusive with the least restrictive special education. For example, our children in state boarding schools would be affected by this change. We currently have complaints about special education issues at both the Alaska State School for the Deaf and Mt. Edgecumbe. We expect the proposed change will increase those types of problems and possibly increase the budget of state-operated schools. Our written testimony raises several other unresolved questions regarding other district placement. Disciplinary exclusions of disabled students and services in youth detention facilities, we provide a revised form of AS 14.31.186 that retains the residency-based allocation of fiscal and administrative responsibility while attempting to address those issues, as well as boarding and private school enrollment. In Section 5, the federal law changes encourage alternate dispute resolution and require that the state make mediation available. To be effective, nonadversarial remedies, such as mediation, need time to accomplish their objectives. We believe the proposed six-month statute of limitations is contrary to federal law and that the most analogous period could be applied should be two years. This statute of limitations should apply to all parties. We have a committee substitute ... that provides for a one year of statute [of limitations] and is certainly an improvement, and we thank you for that. In Section 6, applicable federal regulation requires states to maintain a list of qualifications of hearing officers. We simply propose these qualifications be sent to parents and believe this would foster dispute resolution. In Section 12, this section contains the repeal of a number of Alaska's special education laws, several of which are not clearly in conflict with federal law and are important civil rights for Alaska's most vulnerable children. We encourage you to retain, at a minimum, such important state's rights as the obligation to identify children needing special education and related services, also known as "childfind," that's currently AS 14.30.274; the right to a free and public education in the least restrictive environment, that's at AS 14.30.276; minimum state criteria for an IEP as in AS 14.30.278; and state law definitions that special education and related services that we believe are consistent with federal law. Those two are found at AS 14.30.350(9) and (11). It would be inconsistent for this body to seek meaningful education reform and to simultaneously curb these important civil rights in state law. Thank you for your consideration of our comments, and we look forward to continued dialog on this legislation. It is of great importance to Alaska's students with disabilities and their families. CHAIRMAN DYSON asked Mr. Essley what the mission is of the Disability Law Center. MR. ESSLEY answered the Disability Law Center has a variety of federal mandates to advocate for and protect the rights of mostly individuals with the most severe disability, defined in federal law as those with developmental disabilities and people with mental illness who are in some type of facility, which usually means a state hospital. He further answered that the Disability Law Center gets money from the state and federal governments. He guessed the budget would be in the region of $1 million which provides a centralized Anchorage office and three outlying offices. Number 0483 WALTER MAJOROS, Executive Director, Alaska Mental Health Board (AMHB), Office of the Commissioner, Department of Health & Social Services, came forward to testify. He explained that one of the responsibilities of that board is to advocate on the behalf of children and youth with serious emotional disturbances who are eligible to receive special education services in the state of Alaska and elsewhere. The board shares statutory responsibility with the population with the Governor's Council on Disabilities & Special Education. The board is generally in support of HB 301, but there are some concerns. He explained the board's perception of what the problem is concerning children with serious emotional disturbances (SED). Historically, SED children have not adequately had their needs addressed within the special education services program throughout the state. Many of the SED children are not being identified to receive special education services and that those who are receiving special education services often do not get the counseling and treatment services that they need, and that should be included as part of their IEPs. MR. MAJOROS said the board would like to see the bill strengthen and not weaken the rights of parents and children so they can receive the most comprehensive special education services. One of the areas that needs to be debated is the issue of responsibility of services should be based on community of enrollment versus residence. The six-month statute of limitations for the due process hearings is a problem, and that should be at least one year and preferably two years to encourage parents to use alternative routes such as mediation. The AMHB shares some of the concerns expressed by the Disability Law Center, by repealing the special education statutes the risk of losing of proactive mandates that currently exist in state law such as childfind program, the idea of educational services in the least restrictive environment, relegating everything to regulations and repealing the statutes, and the minimum state criteria that exists in state law for IEPs. Number 0177 TIM WEISS, Board Member, PARENTS, Inc., testified via teleconference from Anchorage. He is the parent of a child with disabilities. PARENTS, Inc., is the only entity authorized under IDEA who is currently in full compliance with the requirements stated in IDEA regulations. PARENTS, Inc. represents parents and children throughout the state. TAPE 00-35, SIDE A Number 0066 MR. WEISS said all items in the current laws are out of compliance with IDEA. Section 3 correspondence schools, residence versus enrollment is an issue of merely who pays. That is not a major issue in the eyes of PARENTS, Inc. except that the change the department is proposing does in fact provide more choice for parents over what schools they want. Section 5, the statute of limitations, PARENTS, Inc. concur that six months is not sufficient. They would prefer two years; however, one year is sufficient also. Section 6, maintaining a list of hearing officers, is already required under federal law in IDEA and its regulations. Section 12, all of those other sections that the removal of were objected to are explicitly mentioned in federal law and regulations. There is no need to put back into state law because that will limit the state's ability to go beyond that and provide additional protection. Number 0241 FAYE NIETO testified via teleconference from Anchorage. She thanked the committee for bringing this bill forward. She appreciates the work of Steve Essley at the Disability Law Center. She is confused as to why at this late date this information is being brought forward when many people who sit on the special education advisory committee with the Governor's council had the information in December. She urged the committee to look at the wonderful practices that IDEA provides the state and the 20,000 children who receive services. She also urged the committee to look at the wealth of information, as Bruce Johnson pointed out, is embodied within IDEA which provides a description of how to operate. She hoped the committee moves this quickly so corrective action is not put in place by the U.S. Department of Education. She noted that April 14 is when the U.S. Department of Education will review the compliance efforts. Number 0488 MARC GROBER, Attorney, testified via teleconference from Anchorage. He has been involved with litigating and representing parents of exceptional children for many years. He has testified about an almost identical situation in 1993 before the legislature; he drafted SB 315 that was introduced by Senator Miller in the 18th Legislature. He has been appointed by the OPA [Office of Public Advocacy] to represent parents and children in this area; and has been a DOE [Department of Education] hearing officer for IDEA. MR. GROBER stated this a very complex situation. He noted he shared quite a bit of material in the past hoping that the committee could become fluent in this area where there is so much jargon. He commented HB 301 is trying to "patch a toothpick and turn it into an ocean liner." The legislation that the agency has offered is a disaster, and he believes the committee couldn't do worse starting from scratch. The real question is "why are we here?" There has been some suggestion, as was suggested in 1993, that if something isn't adopted immediately, money will be lost. He indicated he has spent time conferring with the congressional delegation, and he spoke with Senator Stevens' staff today and was advised that the U.S. Secretary of Education has not indicated that there is any intention yet to cut off Alaska's funding. The federal government wants to see Alaska move forward; that doesn't mean Alaska has to adopt poor legislation. MR. GROBER noted there are a number of issues that the bill presents that a number of people have reviewed. He went over some issues that haven't been discussed: whether the initial sections of the bill, deferring essentially ongoing authority to federal legislation, may be unconstitutional. There are some cases he is attempting to research that may illuminate this problem. He as yet doesn't have an answer, and that is a concern for him. There are major issues with the due process provisions that the bill would allow to remain in Alaska statutes inasmuch as they would remain inconsistent and noncompliant. There are additional issues with the whole concept of the state's role in this venue. Unfortunately, because this is a very legal issue, and there are so many non-legally trained people involved, people often get confused. He wanted the committee to understand that the IDEA does not control the individual actions of local school districts, parents and students. The way the IDEA is fashioned is that is presents a carrot if the state adopts local policy which meets federal minimums. It needs to be understood that if the policy statement of this bill is adopted, Alaska is essentially enacting as the state standard the lowest possible standard. Some of the advocacy groups will tell the committee that is bad because it is tying the state to the lowest possible standard. If Missouri can set out a standard or policy that is beyond the federal statutes, then Alaska can be challenged to do likewise. MR. GROBER noted he had submitted additional testimony today via e-mail to all the committee members. He urged the committee to pass good legislation and not pass bad legislation for the fear of losing money. He finds it hard to believe that the Secretary of the United States Department of Education is going to cut off funding to a state which is trying to enact legislation enabling its agencies and school districts to provide appropriate public education to its students. He urged the legislature to become involved in this. CHAIRMAN DYSON commented he was interested in Mr. Grober's information that the Secretary of the Department of Education would not cut Alaska off because he has also been in contact with both of Alaska's Senators, and they didn't give Representative Dyson much hope. He asked Mr. Grober to drop him a note on that issue. Representative Dyson told Mr. Grober that his staff would get him a copy of the CS when it is available. Number 0985 MARY KLUGHERZ testified via teleconference from Ketchikan. She is a parent and was former chair of the Ketchikan School District's Committee on Gifted and Talented Education. She noted that the Alaska Legislature was a pioneer when it created this initial legislation because the definition of exceptional children included disabled children as well as gifted children. This statute addresses these two distinct groups of students. Virtually every part of this statute either amends or repeals legislation that covers both learning disabled (LD) and gifted and talented (GT) children. It is effective to leave LD children with the protection of the federal law, but it strips all protections from GT students. The GT students will have no statutory rights or protections which they have had since 1970. MS. KLUGHERZ indicated that the bill repeals all but two minor statutes related to gifted education in Alaska. All that remains is a definition and the authority for districts to provide something by regulations adopted by the Department of Education & Early Development. All the other protections and due process rights of this population are completely stripped away. Whatever problem the state may have with complying with IDEA for the learning disabled children, there is no reason to abandon the gifted children. Gifted children represent 5-10 percent of the student population. As this bill is looked at over the weekend, keep in mind, that the original intent of the legislature included gifted and talented children in the due process and procedural rights that were afforded to learning disabled children. The same process and rights need to be provided for gifted and talented students. CHAIRMAN DYSON asked if Ms. Klugherz believes the state's responsibility is the same for gifted children as for children with profound disabilities. MS. KLUGHERZ answered yes it is, and it was the intent of the legislature in the original legislation. Number 1174 DAVID MALTMAN, Executive Director, Governor's Council on Disabilities & Special Education, testified via teleconference from Anchorage. He explained the duties and responsibilities of the Governor's Council on Disabilities & Special Education. He noted that the bill is an important civil rights statute. This is a statement of the rights and responsibilities that connects families with government (schools) and connects them in a way that they are equal partners with the school in direct education of the children. The civil rights statute being considered also establishes a way for parents and schools to resolve their differences. The council believes this bill is necessary because Congress has changed federal law, and it has changed it to the extent that Alaska's state law is inconsistent or conflicts or someway doesn't represent the improvements that have been made in federal law that would be good for Alaskan families. The council would like to see this bill move along because it makes a statement about the rights and responsibilities of parents and schools to educate children with disabilities. CHAIRMAN DYSON asked Mr. Maltman if he thought the bill was fine the way it is. MR. MALTMAN noted the council had suggested some improvements and submitted those in writing, which have also been identified by other groups who have previously testified. He said that the council is also concerned about the removal of gifted education. The council is not comfortable with repealing the rights and responsibilities of parents with gifted students and would like to see some improvements in this area. CHAIRMAN DYSON asked if it is the policy position of the council that there is a public and state responsibility for gifted children that is the same level as those with profound disabilities. MR. MALTMAN said the council respects what the GT people have had. The GT students have not had the best of programs, but the GT parents have had the basis to interact with schools about the education for their children. The council would prefer a much improved system for gifted education where the state actually identifies and perhaps standardizes eligibility, curriculum perhaps, and ways to identify these children. CHAIRMAN DYSON asked Mr. Maltman if he considered being gifted a disability. MR. MALTMAN answered no. He believes that all parents would like to regard their children as special in many ways. The GT students have unique talents, and it is worthy of the state to invest in their education. CHAIRMAN DYSON closed the hearing on HB 301. [HB 301 was heard and held.]
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