Legislature(2001 - 2002)
04/21/2001 11:22 AM House HES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 71-EDUC. OF DISABLED OR GIFTED CHILDREN
CHAIR DYSON announced that the next order of business would be
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."
[Before the committee was CSHB 71(EDU).]
Number 1373
CHAIR DYSON stated that his recollection is that there have been
special-education provisions for kids with disabilities and,
concurrently, for gifted and talented (GT) children that have
been intermingled in the code. He stated that the federal
government does not recognize GT as a part of the special
provisions made for kids with disabilities, and has objected to
their being mixed in [Alaska's] code or in the funding. The
federal government has directed [the Department of Education and
Early Development] to disentangle them so that the [federal
government] is clear that the money provided for children with
disabilities is not commingled with the gifted and talented
program. He asked if he was right [in saying this].
BRUCE JOHNSON, Deputy Commissioner of Education, Office of the
Commissioner, Department of Education and Early Development
(EED), stated that he was correct. He clarified that the
federal government was never concerned about the commingling of
the statutes or regulation, but was very concerned with [the
EED] using money earmarked for children with disabilities for
children with the exceptionality of giftedness. Therefore, [the
EED] stopped doing that. He stated that last year there was a
discussion about whether the federal government would withhold
money if this is not corrected. [The EED] did get a signal from
[the federal government] that no money would be withheld, and
there is no reading that the IDEA (Individuals with Disabilities
Education Act) 97 dollars that come to [Alaska] are in jeopardy
for next year. He stated that in March, the State Board [of
Education] adopted regulations that are in compliance with IDEA
97, and [the EED] is trying to show substantial compliance
wherever possible.
MR. JOHNSON added that the bill has been improved this year on
both sides of the equation: the part of the bill that serves
children with disabilities as well as the part that serves
children with the exceptionality of giftedness. He stated that
[the EED] did this through a deliberate process with
constituents, starting with those who are most concerned about
children with disabilities. There was a two-day meeting
facilitated by an outside expert, and there were agreements over
the disagreements that had arisen during testimony last year.
On the GT side, [constituents] feel very strongly that they want
to be included under the umbrella of "exceptional children."
Number 1585
MR. JOHNSON explained that when [the EED] developed its
legislation, it was split into two sections: one dealing
specifically with children with disabilities, the other with the
exceptionality of giftedness. He stated that in the bill last
year there was children-with-disability language that was pretty
much as it is today. On the GT side, since the state has not
been receiving any money to monitor or provide technical
services for GT students, [the EED] elected to require that
districts serve children with that exceptionality, but for all
procedures and rules around that to be determined district by
district. He stated that this was not well received; therefore,
[the EED] has now taken a different approach, which has a modest
fiscal note, to provide a half-time person for technical
oversight. The districts would then be monitored on how well
they were doing with GT students.
MR. JOHNSON stated that [the EED] did not include transportation
as a related service for this population because [the EED] has
heard a lot about the escalating cost of transportation, and
thought the legislature should take proactive measures if it
wants to provide transportation for this population. He added
that there previously was not a clause on mediation; however,
there is with [this bill].
CHAIR DYSON asked if, by and large, the gifted-and-talented
parent advocacy groups are now comfortable that this is in
separate sections of the bill and no longer commingled.
MR. JOHNSON responded that he wouldn't say that they are
comfortable, but they have recognized that there are some
advantages to doing this. They ultimately feel that, given the
way [the bill] was crafted, it was a reasonable approach. He
clarified that [GT] is still under the broad umbrella of
exceptional children, but was a separate section within that
statute.
CHAIR DYSON asked what the vote was in the House Special
Committee on Education (HEDU).
REPRESENTATIVE JOULE asked if Mr. Johnson, prior to answering
Chair Dyson's question, could speak to the amendments that were
made in HEDU.
Number 1805
MR. JOHNSON responded that the three amendments on the GT side
involved the least restrictive environment. He stated that
[HEDU] voted to delete "least restrictive environment" from the
bill, as was recommended by [the EED].
REPRESENTATIVE JOULE stated that since there was an objection to
the amendment there was a vote, which carried the amendment 4-2.
CHAIR DYSON stated that [in HEDU] there were two "do passes,"
one "do not pass," one "amend," and one "no recommendation" [for
CSHB 71(EDU)].
Number 1938
REPRESENTATIVE COGHILL stated that one of the things he
struggles with in this bill is that the language, except with
what was amended, pretty much mirrors the IDEA language. He
asked if one could construe that there is a civil right that is
being protected. He also stated that with IDEA, inclusion is
being forced, whereas with the GT, exclusion is being forced.
He remarked that he finds this contradictory and would like some
discussion on it.
GREG MALONEY, Director, Special Education, Department of
Education and Early Development, responded that in terms of how
GT and IDEA 97 interact, there is no federal requirement for the
gifted. Therefore, it was decided that both gifted [students]
and kids with disabilities would be served under "exceptional
children" on the state level. The current statute, he said, is
for the education of exceptional children. He stated that in
making that decision to clarify which special education and
gifted requirements are state mandates, the federal government
is most concerned with how [the EED] clearly outlines what are
federal requirements when servicing kids with disabilities, and
that federal funds are not used to support gifted education.
MR. MALONEY stated that because "exceptional children" was used
for both gifted and special education, "least restrictive
environment" was put in. Under IDEA 97, least restrictive
environment means that kids with disabilities are included in
their regular classroom with their same-age peers to the degree
appropriate in order to provide an appropriate education. That
language was also put in for the gifted. He said there was a
concern that if that language were in there for the gifted, then
that would be taken to mean that there could not be "pullout"
programs or separate programs for GT. He remarked that [the
EED] understood that as meaning it would be up to each IEP
(Individual Education Plan) team to make that determination.
However, there was strong feedback from the GT community about
the least restrictive environment. Since it is a state mandate,
there was nothing that was federally required to be maintained
for "least restrictive environment" for gifted education. He
noted that this could never be done for the children-with-
disabilities piece. The idea is not inclusion but [for GT
students to be] involved in the regular classroom to the maximum
degree appropriate.
REPRESENTATIVE COGHILL remarked that this is why he thinks this
legislature should take this up as two separate issues. He
stated that he is going to suggest that the question be divided,
since one is a federal mandate and the other is a state option.
Number 2077
MR. MALONEY clarified that the language chosen for the
regulations also clarifies the gifted requirements from the
federally mandated special-education requirements. He added
that this is also how it is represented in the current bill.
There are two components: the special-education component and
GT.
REPRESENTATIVE WILSON asked if this was why the change from
"exceptional children" to "children with disabilities" took
place.
MR. MALONEY answered yes.
REPRESENTATIVE WILSON asked where in the bill the division
occurs.
MR. MALONEY stated that it occurs on page 13, line 19 [in CSHB
71(EDU)].
Number 2158
REPRESENTATIVE CISSNA stated:
I personally think that although this is not a
federally mandated section of how we're providing
services to our children, at the very same time I've
known lots of Mensa folks - people with extraordinary
mental ability - and know that most of them [didn't]
attain what they could have attained. ... It was
because of the way that we didn't provide services in
schools. ... I would hope [that] if we're going attain
what we can in this state, that we strive for
excellence all the way through so that we can really
do what we need to do in this state - and that's rise
above and really compete out there. ... We're not
going to be able to do [that] unless we serve all of
our children.
MR. MALONEY responded that there is a 30-year history in
[Alaska] of providing gifted educational services. He stated
that there is also a very strong feeling in the gifted community
about the importance of those services. He said he thinks the
difficulty for [the EED] has been that it has had the obligation
to oversee those programs but has not had specific funding
enabling it to do that.
REPRESENTATIVE JOULE stated that regardless of what direction
[the committee] is going, he thinks it needs to be stated that
there is another bill moving through the legislature - the
charter schools bill - whereby potentially there could be a
school within a school or a charter school strictly for gifted
and talented students. He added that he also fears if [the
committee] does not move this along, the GT part could get
buried.
Number 2267
REPRESENTATIVE COGHILL asked, if these issues were separated and
gifted and talented were taken out, whether districts could
arrange for a GT [program].
MR. MALONEY responded that, in theory, districts could
voluntarily choose to provide gifted services. However, there
would be two concerns if this were left to the discretion of
districts: whether the districts would choose to do so, and the
consistency of services. He stated that there has been a clear
message throughout the history of providing gifted service that
some oversight from the state is appropriate, because then it
allows for those services to be provided and for there to be
some consistency, external to the district, in providing those
services.
REPRESENTATIVE COGHILL remarked that the answer, then, is yes,
[the districts] could. He remarked that this language is so
close to what is installed on a federal level for civil rights
that he is concerned it would create a problem in the civil
rights area. He asked Mr. Maloney if he anticipates any
discussion on that.
MR. MALONEY replied that in the 30-year history there has been
more confusion in terms of how gifted services are applied,
because there has been some overlap of services. When the
language was together under "exceptional children," there were
times when it was not clear to districts and/or parents what
applied to gifted and what applied to special education - it
took a fine reading of the regulations to get that. He
explained that in separating this, he thinks it clarifies what
the special-education and the gifted regulations are that need
to be followed. He said that there are some procedural
safeguards that apply to both; however, there are more
protections under the federal law in relation to due process.
He added that there has been very little litigation based on
civil rights issues.
TAPE 01-48, SIDE B
REPRESENTATIVE COGHILL responded that without regard to the
litigation issue, he thinks that starting with due process
hearings and setting up frameworks of that type allows [the
issue of civil rights] to be in that discussion.
Number 2360
REPRESENTATIVE WILSON asked whether there already is a due
process in place for all children.
MR. MALONEY answered that there is a local administrative
complaint procedure through the school boards.
REPRESENTATIVE WILSON asked if gifted children, then, already
have [a due process procedure] in place, as do all other
students.
MR. MALONEY responded that they already have the due process
procedures. He clarified that this is not a new piece for
gifted students.
REPRESENTATIVE WILSON asked what is being added or taken away
that is not already available.
MR. MALONEY responded that in terms of GT, the major proposed
change was to remove transportation reimbursement for gifted
kids. However, that was returned to the bill in HEDU. He
explained that this bill clarifies that some of the things that
are federally mandated do not apply to gifted kids. He stated
that at times this has been misinterpreted to mean that what is
appropriate for kids with disabilities is appropriate for kids
who are gifted. The strategy was to try to separate the two in
order to clear up the confusion and to make sure that federal
funds were not being used inappropriately for gifted kids.
Number 2279
REPRESENTATIVE WILSON stated that her concern is that every
child should have the same opportunity in learning. She said it
is federally mandated to separate the children with
disabilities; however, she feels that the [other children]
should have the same rights. She added that she has a problem
with giving some children more rights than others.
MR. MALONEY responded that he thinks members of the gifted
community would say that there are also kids who have high
abilities and have needs that are different from those of kids
within the range of what may be considered traditional or
normal. These are the kids who meet certain gifted criteria,
who may have high cognitive scores, and who may have exceptional
talents in some areas that the regular curriculum is not
addressing. The concern that comes up, he stated, is that if
this doesn't happen, then -much like what happens with children
with disabilities - children won't be challenged, and they may
experience a high dropout rate. They will get frustrated, and
they may not do well in school, and.
REPRESENTATIVE WILSON asked if [students are already being
challenged].
MR. MALONEY replied that in speaking for the gifted community,
he thinks that - just as for kids with disabilities - the
regular curriculum may not meet their needs. Therefore, it
would require specific special services for the kids who are at
a higher level in terms of cognitive ability.
REPRESENTATIVE WILSON stated that she agrees with what Mr.
Maloney is saying, but there already are classes that do that.
She said she is concerned with putting more demands on the
schools. She asked what other states are doing in these same
situations.
MR. MALONEY responded that he doesn't have specific data on
programs and how they relate in each state; however, this is a
topic that most states have to deal with. He said Alaska is not
alone in struggling with how to provide appropriate services for
the entire range of kids. He added that most districts do have
accelerated programs; however, in terms of the constant feedback
from the gifted program, these are kids who require
categorically different services in order to demonstrate
appropriate achievement.
Number 2131
CHAIR DYSON stated that regardless of what [the committee does],
each district still gets 20 percent more for the GT, learning
disabled, and vocational programs. Therefore, there is no
change in funding.
MR. MALONEY stated that Chair Dyson was correct. He noted that
bilingual education is the one other program under the block
grant. He added that special education has the most specific
requirements; therefore, that funding has the most specific
uses.
Number 2089
REPRESENTATIVE CISSNA asked if she was correct is stating that
each district gets a share for special education, but that the
districts themselves determine how the money is spent. She
stated that friends of hers who are teaching in the Bush are
extremely concerned because even though their district received
the money, it was being spent in other ways. She reiterated
that people she has known who have exceptional abilities have
not achieved what they could have achieved.
MR. MALONEY responded that when the state provides the 20
percent block grant, which is based on total enrollment of
students, there are no specific amounts or percentages that have
to be spent on GT. He clarified that nothing addresses funding
[in the bill].
REPRESENTATIVE JOULE stated that under the block grant it's not
only rural schools that may have a problem with how the money is
spent. He asked if it is fair to say that in the more urban
areas the money heavily goes to one or two of the [block grant]
categories, such as special education, bilingual education in
the rural schools, or vocational education.
Number 1896
MR. MALONEY replied that the message he has gotten from
superintendents and special education directors is that that is
the case. He said one reason is that special education has the
most legalistic and specified requirements. The challenge,
then, is if a student has an IEP for a disability, it has to be
implemented. If it is not [implemented], parent, have the right
to challenge that. He noted that there is a similar right for
the gifted, but in practice there has not been the same level of
scrutiny provided through parents or others on the gifted
program as there has been federally and statewide in terms of
the special education requirements. Kids who have disabilities
have expensive-educational programs; therefore, more funds tend
to go toward those students.
CHAIR DYSON stated that Representative Coghill has an amendment
in the form of a committee substitute that would take gifted and
talented out of [the current bill]. He said it is his sense
that the rest of the debate should just be on that. He asked if
it is fair to say that [the EED] has changed the regulations to
separate GT, and is now asking [the legislature] to change the
statutes to fit the regulations.
MR. MALONEY answered yes. He clarified that even though the
discussion focuses on GT, there are some specific pieces related
to special education that are also in this bill.
CHAIR DYSON remarked that he didn't mean to downgrade the
importance of what [the EED] has done. He asked, if [the
committee] does not pass this bill, whether [the EED] will have
regulations that are out of conformity with the law.
MR. MALONEY responded that the regulations that were adopted are
in conformity with the current law.
CHAIR DYSON stated that [the committee] wouldn't have to do
anything, then.
MR. MALONEY clarified that if [the committee] did nothing, the
federal funding for this year would not be in jeopardy. The
regulations address the changes that [the EED] is wanting to
make; however, they do not take away the need to change the
statute.
CHAIR DYSON asked whether the federal government is not
satisfied with its being changed in regulation, and is requiring
that it be changed in law.
MR. MALONEY answered yes, that [the federal government] is
requiring [the EED] to move toward that. He added that the
federal government has not been completely clear in its message
to [the EED].
CHAIR DYSON asked Mr. Maloney [what year the money would be in
jeopardy].
MR. MALONEY replied that it is the money that would arrive on
July 1, 2001.
CHAIR DYSON asked, "If we did nothing now and did this 12 months
from now, we could still save your bacon?"
MR. MALONEY stated that that is his understanding.
Number 1720
REPRESENTATIVE COGHILL made a motion to adopt the proposed
committee substitute (CS) for HB 71, version 22-GH1010\F, Ford,
4/20/01, as a work draft.
REPRESENTATIVE CISSNA objected for the purpose of discussion.
REPRESENTATIVE COGHILL explained that the gifted and talented
section is taken out of [the proposed CS].
REPRESENTATIVE WILSON stated that the way the original bill is
written, it provides unfunded mandates at the local level to the
schools. She said she thinks this needs to be discussed more
and that she agrees with Representative Coghill.
CHAIR DYSON stated that this certainly is a mandate and limits
local decisions; however, it can be argued that it is not
unfunded because there is 20 percent more money for every
district to cover the four categories. He added that if a
district does not have children considered to be GT or bilingual
students, [the district] would have the same pot of money that
could be put toward kids with disabilities or vocational
programs.
MR. MALONEY stated that he agrees with Chair Dyson. He
clarified that the unfunded part is more at the state level for
the oversight of gifted programs.
Number 1565
REPRESENTATIVE JOULE asked, if this were to be separate, whether
the issue of transportation would remain unfunded.
MR. MALONEY stated that transportation is not part of the block
grant; therefore, if the gifted and talented section is taken
out, the transportation reimbursement would also be removed.
REPRESENTATIVE CISSNA asked if passing the proposed CS or the
original bill would eliminate the ability to have transportation
for the gifted.
MR. MALONEY responded that the version of the bill that came out
of the House Special Committee on Education put back
transportation for GT. If gifted and talented is not part of
the districts' mandate, then there would be no reimbursement for
gifted kids because there wouldn't be a gifted program.
REPRESENTATIVE CISSNA stated that she understands that [with
this bill there is] the lack of a federal mandate, that the
transportation issue is needed, and that the oversight is
needed. She asked how many positions there are that cover
special education.
MR. MALONEY stated that currently there are three program
managers, in addition to himself, who provide direct oversight
for special education in the state. He clarified that this
would [offer] an additional half-time position.
REPRESENTATIVE CISSNA remarked that her concern is that every
child has special needs and every child needs to be taught
differently. She stated that a half-time position doesn't seem
like very much.
Number 1372
REPRESENTATIVE WILSON asked, if a gifted and talented child is
in a school with other kids and the parents want him or her to
go to a different school, which is charter school, whether his
or her transportation would be paid for under this bill. She
also asked, if there were another child whose parents wanted him
or her to go to a different school, but he or she wasn't GT,
whether that child's transportation wouldn't be paid for.
MR. MALONEY responded that, for example, in Anchorage there is a
gifted program whereby kids from other sites are brought to a
central location. He added that it is not necessarily parents'
choice. There would be an identification process through which
kids would be determined eligible, and then transportation would
be set up as part of the kids' educational program. He
clarified that if a child is not in a gifted program, his or her
transportation would not paid for.
REPRESENTATIVE CISSNA asked if this would also apply to a
special education child who did not have an IEP, but who wanted
to go to a different school.
MR. MALONEY answered that she was correct: that child's
reimbursement would not be provided for through the department.
Number 1160
A roll call vote was taken. Representatives Coghill, Stevens,
Kohring, Wilson, and Dyson voted for adopting the proposed CS as
a work draft. Representatives Cissna and Joule voted against
it. Therefore, proposed CSHB 71 was before the committee by a
vote of 5-2.
REPRESENTATIVE WILSON asked if everything for children with
disabilities is the same, in the proposed CS, as it was in the
original bill.
REPRESENTATIVE COGHILL responded that it is primarily the same.
CHAIR DYSON remarked that a profound change has been adopted; he
said he feels he owes it to Mr. Maloney to allow him to speak to
it.
MR. MALONEY responded that his experience with the gifted
community is that this is a group of people who feel
passionately about the requirement that children have for these
services, and that they will have a strong reaction to this
[change]. Their concern will be, he said, that the state has
not shown the level of support that they believe is needed for
their students. He added that this is a group of parents who
are well organized, and who will make clear their concern with
this particular legislative move.
Number 1064
CHAIR DYSON stated his position:
We're talking about what is a public responsibility.
Certainly, for me, when considering this debate, I
have to go back to our foundational documents and say,
"You know what constitutional authority and federal
and state [authority] we have for taking the public's
dollars to spend them on groups of populations." And
certainly, in my view, there is a hierarchy of those
things. Kids with disabilities have a far greater, in
my view, claim upon the taxpayer's dollars to help
them deal with the disabilities.
REPRESENTATIVE STEVENS stated that he appreciates the proposed
CS, but there is an implied plan to move ahead with dealing with
GT [students] in the future. He asked if this is Chair Dyson's
intention.
CHAIR DYSON pledged to this committee that anything that comes
forward will receive a fair hearing. He added that he agrees
with Representative Cissna that exceptional kids should not be
left out of the public education process, and need to be
provided with all the education opportunities specially tailored
to their particular needs that are possible.
Number 0891
REPRESENTATIVE CISSNA stated that it is a constitutional
requirement for students to be provided with the education that
they need. She said she thinks it is a defensible argument that
it becomes a handicap when gifted students [are not addressed].
REPRESENTATIVE JOULE remarked that he does not have a problem
supporting the bill as amended; however, he is very disappointed
that it has been separated out. He stated that, like special
education, gifted and talented crosses all socioeconomic lines.
He stated that these aren't certain classes of kids; therefore,
the parents of gifted and talented of kids and the parents of
special-education kids are probably equal taxpayers.
REPRESENTATIVE WILSON stated:
This is not an easy decision, but ... if we as
legislators were fully funding schools the way they
should be funded, there would be extra money to do a
lot of extra things. ... That's one of my big
concerns; it's another mandate that we would be
putting on. And I'm not saying that it's not needed
and it's not important - it is; it's very important.
And those kids that are gifted and talented have every
right to learn up to their ability, if the sky's the
limit. But, unfortunately, we're not funding the
schools adequately at this time.
REPRESENTATIVE COGHILL remarked that this move is in no way
meant to disparage children in special-needs education.
However, [in response to] the issue that [Representative Joule]
raised that it doesn't have socioeconomic boundaries, he said it
still stratifies an educational community, and he is always
cautious about doing that. He added that this is fashioned
after the IDEA, which is a civil rights issue, and he does not
think it is wise to mirror that language. Finally, he said he
thinks IEPs are good for all students.
[A roll call vote for moving the bill was taken; however, a
motion to move the bill had never been stated.]
Number 0454
REPRESENTATIVE COGHILL moved to report CS for HB 71, version 22-
GH1010\F, Ford, 4/20/01 out of committee with individual
recommendations and the accompanying fiscal note(s).
REPRESENTATIVE CISSNA objected.
A roll call vote was taken. Representatives Coghill, Stevens,
Kohring, Joule, Wilson, and Dyson voted in favor of moving the
bill. Representative Cissna voted against it. Therefore, CSHB
71(HES) moved from the House Health, Education and Social
Services Standing Committee by a vote of 6-1.
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