Legislature(1993 - 1994)
03/22/1993 03:00 PM HES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 235 - SPECIAL EDUCATION AND RELATED SERVICES Number 137 MYRA HOWE, DIRECTOR OF EDUCATIONAL PROGRAM SUPPORT/SPECIAL EDUCATION PROGRAMS IN THE DEPARTMENT OF EDUCATION, 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 education. 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 definitions. 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 money. 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 education. 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 STEPHEN T. MCPHETRES, EXECUTIVE DIRECTOR OF THE ALASKA 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 instead. 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 FRANK GARRITY, SPECIAL SERVICES COORDINATOR FOR THE NORTH 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 LARRY WIGET, LEGISLATIVE LIAISON FOR THE ANCHORAGE SCHOOL 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 changes. 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 change. 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 AN UNIDENTIFIED MALE VOICE ON TELECONFERENCE (possibly Marc Grober) asked if the chair would entertain additional public testimony. 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 "exceptionalities." 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 question. 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 `disabilities.'" 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 acts. 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 amendment. 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 recommendations. 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 conflicts. 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.