Legislature(1993 - 1994)

03/22/1993 03:00 PM HES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
  HB 235 - SPECIAL EDUCATION AND RELATED SERVICES                              
  Number 137                                                                   
  testified in Juneau in support of HB 235.  She said Alaska                   
  needed to amend its state statutes concerning special                        
  educational services to comply with federal requirements, or                 
  else it would lose its conditional approval for FY92-FY94,                   
  and likewise some federal funding.  She listed the sections                  
  that dealt with those conditions:                                            
       Section 8 would allow school districts to take to a due                 
       process hearing parents who deny consent for initial                    
       evaluation or placement of their child into special                     
       Sections 9 and 11 deal with consent, she said.  The                     
       federal Office of Education had asked the state to                      
       remodel its definition of consent and its stipulations                  
       concerning a parent's ability to withdraw consent to                    
       match federal definitions and stipulations.                             
       Section 21 would add rehabilitation services to the                     
       list of related services.  That change was due to                       
       reauthorization of federal law which included                           
       additional services to children with disabilities.                      
       Section 23 adds two new categories of disabilities:                     
       autism and traumatic brain injury; and conforms state                   
       definition of educational records to federal                            
  Number 171                                                                   
  REP. G. DAVIS asked Ms. Howe to explain the CINA (Children                   
  in Need of AID) statute (Alaska statute, AS 47.10.010, which                 
  allows the state to take action on behalf of a child when a                  
  parent has knowingly failed to take action to provide                        
  treatment for the child).                                                    
  MS. HOWE said she knew that the statute had to do with                       
  having a guardian ad litem for the child.  The Department of                 
  Education (DOE) did not use it in special education and,                     
  instead, appointed surrogate parents, she said.  The                         
  Department of Health and Social Services occasionally used                   
  it, for example, if a parent was deemed not to be acting in                  
  their child's best interests.  That was not within the                       
  special education process did not use it, but used surrogate                 
  parents, she said.                                                           
  Number 185                                                                   
  REP. G. DAVIS asked if the state could amend the statute to                  
  accommodate some of the inclusions in HB 235.                                
  MS. HOWE answered that she had not talked about that with                    
  the federal people.  She said the indication she had gotten                  
  when she spoke that morning with her department was that the                 
  DOE needed to use the due process hearing because state                      
  statutes required it.                                                        
  Number 192                                                                   
  REP. B. DAVIS asked what elements in HB 235 would affect the                 
  state's talented and gifted (TAG) educational program.                       
  MS. HOWE answered that the bill would have only one effect                   
  on the TAG program, that of ending the requirement that each                 
  gifted student be reevaluated at least every three years.                    
  The department felt it was not necessary, as it cost the                     
  state for psychologists and district time, even though                       
  gifted students seldom lose their eligibility for such                       
  programs.  She said there is no federal requirement for the                  
  three-year reevaluation, complete with IQ test.  The schools                 
  would continue to perform annual progress evaluations on an                  
  Individualized Education Plan (IEP), which would help                        
  determine goals and objectives for the year, she said.                       
  Number 225                                                                   
  REP. B. DAVIS asked if Ms. Howe had reviewed the changes in                  
  the TAG program with the Governor's Council on Education,                    
  and if so, what did they recommend.                                          
  MS. HOWE answered yes, the DOE had made a presentation on                    
  February 19, 1993, to the governor's council.  She said                      
  HB 235 had been redrafted since then, and a copy provided to                 
  the council along with a sectional analysis, but the DOE had                 
  not heard back from the council.                                             
  Number 234                                                                   
  REP. B. DAVIS said, "Did I not hear you say that you are                     
  covered for FY94-5 as far as the waiver that you might have                  
  had to, conditional waiver is what you said."                                
  MS. HOWE answered that the state's conditional approval was                  
  good until July 1993.                                                        
  REP. B. DAVIS asked, "And then what happens?"                                
  MS. HOWE answered that the DOE stands to lose its federal                    
  REP. B. DAVIS asked if the DOE could put in for an                           
  additional conditional waiver.                                               
  MS. HOWE said the department had received a hand-carried                     
  letter from the U.S. Department of Education that day                        
  indicating that the department could not get such an                         
  extension.  She also noted that the state of New York had                    
  recently lost its federal funding due to failure to bring                    
  its state service plan into compliance with federal laws.                    
  Number 250                                                                   
  CHAIR BUNDE noted for the record the presence of Rep. Martin                 
  and Rep. Mackie in the audience, and said they would be                      
  welcome to join the committee at the table if there was                      
  room.  Each declined.                                                        
  REP. VEZEY asked if $8.34 million represented the total                      
  amount of federal funds the state received for special                       
  MS. HOWE answered yes.                                                       
  Number 262                                                                   
  REP. VEZEY asked about the zero fiscal note for HB 235, and                  
  questioned whether it was realistic.                                         
  MS. HOWE addressed the issue of the bill's low cost, saying                  
  that cutting the three-year reevaluation requirement for TAG                 
  students would save school districts money and free                          
  psychologists for other duties.   The bill would add only a                  
  few new students under the autistic and brain injury                         
  categories who had been included under an "other health                      
  impaired" category.   The bill was only putting common                       
  current practice into statute.                                               
  Number 278                                                                   
  COUNCIL OF SCHOOL ADMINISTRATORS, testified in Juneau in                     
  support of HB 235.  He said the due process provisions were                  
  good; it protects parents; it assures school districts of                    
  some process to follow if they need to provide special                       
  services to children over their parents' objections; and the                 
  elimination of the three-year evaluation requirement would                   
  allow the district to devote time spent testing to teaching                  
  REP. G. DAVIS asked who might be the impartial hearing                       
  officer referred to in section 8, page 3, of HB 235.                         
  Number 297                                                                   
  MS. HOWE answered that the hearing officer could be an                       
  attorney, a member of the community, or an external                          
  specialist in specialized children.                                          
  REP. G. DAVIS asked whether the parents and school district                  
  would both have to agree on the selection of the hearing                     
  officer, who would not be a district employee.                               
  MS. HOWE answered that was correct.                                          
  Number 306                                                                   
  DENNIS WETHERELL, PARENT OF A GIFTED CHILD, testified via                    
  teleconference from Wasilla in opposition to HB 235.  He                     
  said elimination of the three-year evaluation would have the                 
  hidden result of exempting the school district from                          
  consulting with gifted childrens' parents on the child's                     
  progress, appropriateness of placement, and effectiveness of                 
  the program of study developed by the district.  Such                        
  consultation is required in the bill only after                              
  reevaluation, or after a change in placement, he said.  In                   
  the absence of a mandatory three-year reevaluation, if the                   
  DOE fails to mandate annual Individualized Education Program                 
  (IEP) consultations, then parents will have no input into                    
  how their gifted children are treated by the districts.  He                  
  said HB 235 requires parents to prove that the districts'                    
  IEP is inappropriate, instead of requiring the district to                   
  prove to the parents that the plan is appropriate, as                        
  provided in current law.                                                     
  MR. WETHERELL said HB 235 excludes gifted students from                      
  provisions in section 17, guaranteeing that school districts                 
  must provide special education and related services to                       
  handicapped students schooled in private schools or at home.                 
  He said the bill leaves the definition of "gifted children"                  
  up to state regulations, but the current regulations are                     
  vague.  He protested that the DOE does not have plans to                     
  change the definition, and that a more comprehensive                         
  definition be included.  He also disputed that all of the                    
  bill's provisions were required to avert the loss of up to                   
  $7 million in federal grants.  He said the required                          
  revisions did not need to affect gifted education.                           
  Number 360                                                                   
  REP. B. DAVIS asked Ms. Howe to address Mr. Wetherell's                      
  points.  She asked if it was possible, as he had said, to                    
  exclude gifted children from mention in HB 235 and still                     
  retain the federal funds.                                                    
  MS. HOWE said the DOE could exclude from HB 235 all                          
  provisions affecting gifted students and retain federal                      
  funding.  She said the IEP planning meeting and the three-                   
  year evaluation were different processes, and there was                      
  little testing that overlapped.  She said the federal                        
  government has directed states not to require school                         
  districts to take parents to due process on some issues, but                 
  to allow such hearings if necessary.  She said she would be                  
  willing, at the committee's pleasure, to include gifted                      
  students in home-school services.  She said the DOE had                      
  received a formal complaint on the topic in this school                      
  year, and thereafter had required districts to provide such                  
  services to gifted students as a general practice.  She said                 
  she had explained to Mr. Wetherell that the DOE lacked funds                 
  to convene a task force to develop a tighter definition of                   
  "gifted children," and her primary responsibility was to                     
  deal with children with disabilities, and the DOE depends on                 
  local districts to define gifted students for themselves.                    
  Number 405                                                                   
  SLOPE BOROUGH SCHOOL DISTRICT, testified in favor of HB 235.                 
  He said he hoped that special education would get the same                   
  funding as the previous year, or more in FY94, as it was                     
  hard to provide related services to the Bush.                                
  Number 422                                                                   
  DISTRICT, testified via teleconference from Anchorage in                     
  support of HB 235, saying it would allow the state to comply                 
  with federal law and receive $8 million in federal funds, of                 
  which $1.19 million is earmarked for the Anchorage School                    
  District.  He said eliminating the requirement for three-                    
  year evaluations of gifted students would allow more                         
  efficient use of psychologists personnel.                                    
  Number 440                                                                   
  MARC GROBER testified via teleconference from Nenana in                      
  support of HB 82.  He said school districts select hearing                   
  officers from a limited list compiled by DOE, according to                   
  statute, which he said meant officers favorably disposed to                  
  the school districts.  He said Ms. Howe might be lying about                 
  DOE's use of the CINA statute.                                               
  According to MR. GROBER, "We raised the China act issues                     
  last year.  We also spoke to Barbara Rauch, who is the, a                    
  compliance officer who was with the state.  Ms. Rauch                        
  clearly stated that she had never heard from the state of                    
  Alaska regarding CINA.  In fact, there is no such process as                 
  Myra described in place now.  At present time that is the                    
  reason that the federal government wanted to make sure that                  
  there was something in place.  In point of fact, the CINA                    
  act specifically provides for recourse where there is                        
  neglect, including educational neglect.  There are ample                     
  protections, and it is a very well thought out procedure,                    
  that provides counsel to the parents and to the child."  He                  
  said the due process Ms. Howe discussed does not provide                     
  counsel to parents and was a "shadow process."                               
  MR. GROBER said he knew of several examples in which school                  
  districts have refused to provide services for gifted                        
  children.  He said the three-year evaluations were not just                  
  for eligibility, but also for maintaining an understanding                   
  of the child's needs.  He said IEP meetings included no                      
  assessment or evaluation.                                                    
  Number 472                                                                   
  CHAIR BUNDE interrupted to remind Mr. Grober that he had                     
  exceeded the testimony limit.                                                
  Number 475                                                                   
  PAUL VERHAGEN, PARENT OF GIFTED CHILDREN, testified via                      
  teleconference from Nenana in support of HB 82.  He                          
  expressed strong dissatisfaction with the amount of public                   
  notice of the hearing, and asked the committee not to pass                   
  HB 235.  He said he did not disagree that changes were                       
  necessary, but had hoped for more public notice of any                       
  Number 519                                                                   
  CHAIR BUNDE encouraged members of the public to send in                      
  written testimony to their representatives or to the next                    
  committee of referral, the House Finance Committee.  Hearing                 
  no further requests to testify, he closed public testimony                   
  on HB 235 and asked for questions from the committee.                        
  REP. KOTT asked if the committee had a copy of the faxed                     
  letter Mr. Verhagen said he had sent in.                                     
  CHAIR BUNDE told Mr. Verhagen the committee had not received                 
  the letter and encouraged him to resubmit it.                                
  MR. VERHAGEN said he would resend the letter.                                
  Number 538                                                                   
  REP. B. DAVIS asked about the letter to which Ms. Howe                       
  referred.  She also asked whether Ms. Howe would object to                   
  the recommended changes concerning the inclusion of talented                 
  and gifted (TAG) under home schooling, under section 17.                     
  MS. HOWE said the DOE would not object to making that                        
  CHAIR BUNDE clarified the amendment to section 17, saying                    
  HB 235 as amended "would require school districts to provide                 
  special education and related services and gifted services                   
  even if the child is not at home, at a private school or in                  
  a hospital."                                                                 
  Number 552                                                                   
  REP. B. DAVIS asked the reason for Chair Bunde's urgency in                  
  passing the bill from committee, and asked why the committee                 
  could not wait to hear from the Governor's Council on                        
  Education after the council reviewed the legislation.  She                   
  also said she had heard the council had drafts of                            
  recommended legislation.  She commented if the committee                     
  passed out HB 235, they would not have the chance to                         
  consider the council's input.                                                
  Number 559                                                                   
  CHAIR BUNDE acknowledged her concerns, but said, as it was                   
  the 71st day of the session, he felt the need to move the                    
  bill along.  He said it could be addressed in the House                      
  FInance Committee and on the House floor.                                    
  Number 563                                                                   
  REP. B. DAVIS asked whether, in light of the urgency, Chair                  
  Bunde would be willing to delete the sections of HB 235 that                 
  were not required to continue receiving federal special                      
  education funds.  She said some of the other elements could                  
  be dealt with through other bills.  She said some had                        
  already been introduced, and some were in HB 85.  She said                   
  she saw no need to deal with the bill so fast.                               
  CHAIR BUNDE said there was no assurance that HB 85, a very                   
  complex bill, would pass anytime soon.  He said he would not                 
  want elements of HB 235 contingent on HB 85.                                 
  Number 567                                                                   
  REP. G. DAVIS said he was involved in TAG programs, and knew                 
  that parents of such children were more involved than normal                 
  with education.  He said Rep. B. Davis's points were valid,                  
  and that he would look forward to the input from the                         
  governor's council, which would help address the concerns of                 
  parents, students and the administration.  He pointed out                    
  that HB 235 addressed points other than just those necessary                 
  to secure federal special education funding.  He expressed                   
  hope for an opportunity to address the other points later.                   
  CHAIR BUNDE noted that, due to technical problems, Klawock                   
  could not transmit testimony, but only listen in.                            
  Number 588                                                                   
  REP. TOOHEY asked whether the loss of the federal funds                      
  would be permanent if the state failed to make the necessary                 
  changes in its special education laws by a certain deadline.                 
  Number 600                                                                   
  MS. HOWE stated that conversations that day with a federal                   
  official indicated that the date was July 1, 1993.  "It is                   
  conceivable that a person could go beyond that, but the                      
  problem is that the federal money has a certain statute of                   
  limitations, so if we go beyond the date, then the money is                  
  gone.  So, and that's the situation New York is finding                      
  itself in right now.  We've had a conditional essentially                    
  for two years.  Under our state plan we have a new one                       
  that's due for FY95, and so we can't go beyond, you know, we                 
  had promised them actually last July that we would have this                 
  all signed and delivered for them."                                          
  TAPE 93-41, SIDE B                                                           
  Number 000                                                                   
  CHAIR BUNDE moved amending section 17, line 13, of HB 235,                   
  adding so that it would read, "requires a school district to                 
  provide special education, gifted, and related services                      
  available ..." etc.  He asked for objections.                                
  Number 024                                                                   
  MS. HOWE suggested an alternative wording, amending line 10                  
  by striking the words "of an exceptional child" and                          
  inserting "a child with exceptionalities" or "an exceptional                 
  child," both of which were commonly used terms that would                    
  encompass both gifted and disabled children.  She said the                   
  term special education in Alaska was already construed to                    
  mean both gifted and disabled students.                                      
  Number 030                                                                   
  CHAIR BUNDE asked whether she meant use the word                             
  "exceptionalities" instead of the word "disabilities" on                     
  line 11.                                                                     
  MS. HOWE answered yes.                                                       
  Number 035                                                                   
  CHAIR BUNDE asked whether the term was politically correct.                  
  Number 037                                                                   
  MS. HOWE answered yes, in Alaska.                                            
  Number 040                                                                   
  CHAIR BUNDE asked if the DOE would prefer such wording.                      
  MS. HOWE said it would be clearer usage and more consistent                  
  with the section.                                                            
  Number 044                                                                   
  CHAIR BUNDE withdrew his earlier motion, and moved instead                   
  an amendment to use the word "exceptionalities."                             
  Number 046                                                                   
  Grober) asked if the chair would entertain additional public                 
  Number 050                                                                   
  CHAIR BUNDE said no, that public testimony had closed.  He                   
  then restated the motion and asked for discussion or                         
  objections to it.                                                            
  Number 061                                                                   
  REP. OLBERG asked Chair Bunde to repeat his motion.                          
  CHAIR BUNDE repeated his motion.                                             
  REP. OLBERG objected to the motion.                                          
  CHAIR BUNDE invited him to speak to the motion.                              
  REP. OLBERG declined.                                                        
  CHAIR BUNDE called for a voice vote on the motion, and heard                 
  no nays.                                                                     
  REP. OLBERG noted that a roll call vote was more usual.                      
  CHAIR BUNDE agreed to a roll call vote, but none was taken.                  
  Number 086                                                                   
  REP. B. DAVIS asked if the term "exceptionalities" were                      
  defined in statute, and said the objection might change if                   
  the term were defined.                                                       
  CHAIR BUNDE asked Ms. Howe for a definition of the term                      
  Number 097                                                                   
  REP. OLBERG asked if the motion meant that the legislature                   
  was mandating home instructional opportunities for any                       
  exceptional child, whether disabled, gifted or whatever.                     
  CHAIR BUNDE said he understood that was a proper reading; it                 
  currently applied to all special education children, and the                 
  motion would allow the inclusion of gifted children.  He                     
  said he understood Rep. Olberg's reservation.                                
  Number 111                                                                   
  MS. HOWE read a definition of the term "exceptional                          
  children" found on page 6, line 6, paragraph (3).  She                       
  suggested that the motion be amended to follow the wording                   
  in that paragraph.                                                           
  CHAIR BUNDE agreed that "exceptionalities" was an obtuse                     
  word.  He asked Rep. Olberg if the change clarified his                      
  REP. OLBERG stated, "It clarifies without satisfying,                        
  whatever that means."                                                        
  CHAIR BUNDE commented that it sounded like a new product.                    
  Number 137                                                                   
  REP. OLBERG said the committee was creating a new                            
  educational product that would stretch the education budget                  
  yet again.                                                                   
  CHAIR BUNDE disagreed, saying that the provision already                     
  existed in state statute.  He said the DOE wanted to take                    
  gifted education out of the special education program, an                    
  effort that would be dealt with in the discussion of HB 85,                  
  scheduled for the following week.                                            
  Number 145                                                                   
  REP. OLBERG asked whether the particular statute did or did                  
  not address gifted children at that time.                                    
  CHAIR BUNDE said that gifted student programs were, at that                  
  time, funded through special education programs.                             
  Number 150                                                                   
  REP. OLBERG asked whether HB 235 was an effort to limit home                 
  instruction to children with disabilities.                                   
  CHAIR BUNDE responded, "To exceptional children."                            
  REP. OLBERG clarified, "No, I mean, no, it reads                             
  CHAIR BUNDE said, "As it was originally worded it would not                  
  include gifted children.  My understanding of the statute,                   
  as it was being crafted, it was to include gifted children.                  
  As you may have noticed, there's a good bit of concern about                 
  separating gifted children out from special ed."                             
  Number 159                                                                   
  REP. OLBERG stated, "I think we've gone full circle here, so                 
  let me try one more time.  If this did not exist, would                      
  gifted children be entitled to home instruction?"                            
  CHAIR BUNDE replied, "Yes."                                                  
  REP. OLBERG said, "This then came along and eliminated the                   
  gifted children and limited it to disabled children."                        
  CHAIR BUNDE responded, "That's correct."                                     
  REP. OLBERG stated, "And we're going to go back to where we                  
  started from, even though that might not have been a good                    
  place to be."                                                                
  Number 165                                                                   
  CHAIR BUNDE said, "Yes, we will discuss that issue in more                   
  detail in HB 85."                                                            
  REP. OLBERG stated, "Thank you."                                             
  Number 173                                                                   
  REP. VEZEY said the Americans with Disabilities Act (ADA)                    
  did not deal with gifted people, but with disabled people.                   
  He said he was having difficulty reconciling a bill that                     
  dealt with gifted students with the ADA.  He said the                        
  purpose of the statute, supposedly, was to remain in                         
  compliance with federal law, which he said it might do, but                  
  only after going through a lot of extraneous information.                    
  CHAIR BUNDE said he had asked that the bill be written to                    
  reflect current state policies, and later, when the                          
  committee got to HB 85, it could then separate funding for                   
  special education students and gifted students, which would                  
  then establish a new state policy to supercede the current                   
  state policy.                                                                
  Number 191                                                                   
  REP. VEZEY commented that the motivation behind HB 235 was                   
  the ADA.                                                                     
  CHAIR BUNDE disagreed, saying HB 235 dealt only with federal                 
  funding of special education, not with the ADA.                              
  Number 197                                                                   
  REP. VEZEY said he thought that the purpose behind HB 235                    
  was to have the state remain in compliance with the ADA.  He                 
  said it was possible they were talking about two different                   
  CHAIR BUNDE said that was correct; they were speaking of two                 
  different acts.                                                              
  REP. OLBERG said that the federal law with which the state                   
  was attempting to remain in compliance with through HB 235                   
  was the Individuals with Disabilities Education Act.  He                     
  commented that, "We're trying to slice our interest groups                   
  into ever smaller pieces."                                                   
  Number 206                                                                   
  CHAIR BUNDE said he wanted to try again to achieve the                       
  amendment to page 10, line 5, which would read:  "If a                       
  parent with an exceptional child enrolls the child ...";                     
  striking the words "with" and "disabilities."                                
  REP. TOOHEY contested the wording.                                           
  CHAIR BUNDE explained that she had forgotten an earlier                      
  REP. TOOHEY said she stood corrected.                                        
  REP. OLBERG objected to the motion.                                          
  CHAIR BUNDE invited him to speak to his objection.                           
  REP. OLBERG declined.                                                        
  CHAIR BUNDE called for a roll call vote on the amendment to                  
  amend line 10 to read, "If a parent of an exceptional child                  
  enrolls the child ... "  The amendment deleted the words                     
  "with disabilities," he said.  Those voting yea were Reps.                   
  G. Davis, Vezey, B. Davis, Toohey and Bunde.  Those voting                   
  nay were Reps. Kott and Olberg.  The MOTION PASSED 5-2.                      
  Number 243                                                                   
  CHAIR BUNDE moved passage of HB 235 with individual                          
  REP. B. DAVIS objected, saying she supported the changes                     
  necessary for the DOE to come into compliance with federal                   
  laws, but she believed the House Finance Committee would not                 
  have the time to address the issues that should have been                    
  addressed in the HESS Committee.  She said it was not a                      
  money issue.  She opposed passage from the committee, saying                 
  that the bill could have had at least one additional hearing                 
  before the HESS Committee to address some elements of the                    
  bill to make it even better and more acceptable to parents                   
  as well as administrators.                                                   
  Number 256                                                                   
  REP. KOTT objected, saying his reasons were similar to those                 
  of Rep. B. Davis.  He said much of the testimony represented                 
  disagreement on several issues, and it would be prudent to                   
  hold the bill over for a day or so to resolve some of the                    
  CHAIR BUNDE called for a brief at-ease before the vote, at                   
  4:09 p.m.  He called the meeting back to order at 4:11 p.m.                  
  and repeated the motion to pass HB 235 from the HESS                         
  Committee with individual recommendations.  Those voting yea                 
  were Reps. Vezey, Kott, Brice, Toohey, Bunde and G. Davis.                   
  Those voting nay were Reps. Olberg and B. Davis.  The MOTION                 
  PASSED 6-2.                                                                  
  CHAIR BUNDE then brought HB 210 to the table.                                

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