Legislature(1999 - 2000)
04/12/2000 01:35 PM Senate HES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE HEALTH, EDUCATION AND SOCIAL SERVICES COMMITTEE
April 12, 2000
1:35 p.m.
MEMBERS PRESENT
Senator Mike Miller, Chairman
Senator Pete Kelly, Vice-Chairman
Senator Gary Wilken
Senator Kim Elton
MEMBERS ABSENT
Senator Drue Pearce
COMMITTEE CALENDAR
CS FOR HOUSE BILL NO. 218(FIN)
"An Act relating to property loaned to or held by museums."
-MOVED CSHB 218(FIN) OUT OF COMMITTEE
HOUSE BILL NO. 236
"An Act relating to credited service in the teachers' retirement
system for part- time employment."
-MOVED HB 236 OUT OF COMMITTEE
SENATE BILL NO. 205
"An Act relating to the education of exceptional children; and
providing for an effective date."
-ADOPTED CSSB 205(HES) AND HELD
PREVIOUS SENATE COMMITTEE ACTION
HB 218 - No previous Senate action.
HB 236 - No previous Senate action.
SB 205 - No previous Senate action.
WITNESS REGISTER
Kevin Hand
Legislative Aide to Representative Halcro
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Testified for the sponsor of HB 218.
Bea Shepard
Museums Alaska
PO Box 242323
Anchorage, AK 99524
POSITION STATEMENT: Supports HB 218.
Joe Leahy
Executive Director
Huna Totem Heritage Foundation
9301 Glacier Highway
Juneau, AK 99801
POSITION STATEMENT: Supports HB 218.
Donna Matthews
Executive Director
Museums Alaska
PO Box 242323
Anchorage, AK 99524
POSITION STATEMENT: Supports HB 218.
Patty Swenson
Legislative Aide to Representative Bunde
Alaska State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Testified for the sponsor of HB 236.
Stan Fisher
No address provided
Anchorage, AK
POSITION STATEMENT: Supports HB 236.
John Cyr
NEA-Alaska
114 2nd Street
Juneau, AK 99801
POSITION STATEMENT: Supports HB 236.
Kathleen Bracken
No address provided
Petersburg, AK
POSITION STATEMENT: Supports HB 236.
Bill Church
Retirement Supervisor
Division of Retirement and Benefits
Department of Administration
PO Box 110203
Juneau, AK 99811-0203
POSITION STATEMENT: Discussed the impact of HB 236 on TRS.
Bruce Johnson
Deputy Commissioner
Department of Education and Early Development
801 W 10th St., Ste. 200
Juneau, AK 99801-1894
POSITION STATEMENT: Supports CSSB 205(HES) as amended.
Dr. P.J. Ford Slack
Teaching and Learning Support
Department of Education and Early Development
801 W 10th St., Ste. 200
Juneau, AK 99801-1894
POSITION STATEMENT: Answered questions regarding SB 205.
Mr. Nelson Hubbell
1251 Clippership Dr.
Anchorage, AK 99515
POSITION STATEMENT: Supports CSSB 205(HES) but it does not go
far enough.
Ms. Pamela Bickford
16840 Tide View Drive
Anchorage, AK 99516
POSITION STATEMENT: Proposed amendments to CSSB 205(HES).
Mr. Mike Harpold
507 Pittingen Ave.
Ketchikan, AK 99901
POSITION STATEMENT: Supports Amendment 1 to CSSB 205(HES).
Ms. Margo Waring
1215 Fifth St.
Douglas, AK 99824
POSITION STATEMENT: Supports Amendment 1 to CSSB 205(HES).
Robert Clink
843 W 11th Ave.
Anchorage, AK 99501
POSITION STATEMENT: Supports CSSB 205(HES) but it does not go
far enough.
Mr. Phil Munger
Box 874321
Wasilla, AK 99687
POSITION STATEMENT: Commented on HB 301.
Ms. Cindy Benner
998 Willow Grouse Rd.
Fairbanks, AK 99712
POSITION STATEMENT: Commented on CSSB 205(HES).
Mr. Robert Briggs
Disability Law Center of Alaska
230 S Franklin
Juneau, AK 99801
POSITION STATEMENT: Supports and proposed an amendment to CSSB
205(HES).
Ms. Robin Taylor
2305 Foraker Dr.
Anchorage, AK 99501
POSITION STATEMENT: Commented on proposed DLCA amendment to CSSB
205(HES).
Ms. Chris Casler
PO Box 875735
Wasilla, AK 99687
POSITION STATEMENT: Commented on proposed DLCA amendment to CSSB
205(HES).
ACTION NARRATIVE
TAPE 00-17, SIDE A
Number 001
CHAIRMAN MILLER called the Senate Health, Education and Social
Services (HESS) Committee to order at 1:35 p.m. Present were
Senators Wilken, Elton, and Chairman Miller.
HB 218-MUSEUM ACQUISITION OF UNCLAIMED PROPERTY
MR. KEVIN HAND, legislative assistant to Representative Halcro,
sponsor of HB 218, made the following comments about CSHB
218(FIN). Alaska's museums contain many artifacts in need of
special care that were loaned by owners who are no longer in
contact with the museums. Often lenders pass away or move
without maintaining notice to the museum, or no documentation as
to the origin of some of the artifacts exists. This leaves
museums in a difficult position since, without contact with the
lender or defined ownership by the museum, it is difficult to
properly care for the artifacts while simultaneously incurring
the cost for storage of the items. Some items have degenerated
to the point where it is best to dispose of that property to make
room for more valuable artifacts. Contamination, insects, and
fungi are often culprits in providing a serious threat to other
artifacts. Without ownership or permission from the lenders,
museums must care for the artifacts without the authority to do
so. CSHB 218(FIN) establishes a process through which museums
can clarify title on unclaimed property. The process is as
follows: at least 7 years must pass between the expiration date
of the loan with no contact between the lender and the museum;
the museum must send a notice by certified mail to the lender's
last known address; if, after 30 days, no one has contacted the
museum, the museum must publish a notice for four weeks in a
general circulation newspaper in the area of the museum and in
the area of the last known address of the lender; and, after 45
days, the museum may claim title to the property.
MR. HAND stated CSHB 218(FIN) satisfies more than a reasonable
effort on behalf of the museum to contact missing property
owners. The lender would still have legal recourse through a
reclamation period of two years. Museums must notify lenders of
any change of the location of the museum and they must also
notify all new lenders of the process. The museum community
requested and strongly supports this bill and there is no known
opposition to it.
Number 326
SENATOR ELTON asked if museums will incur any liability during
the two year reclamation period.
MR. HAND replied when the museum takes ownership, it will have
title, therefore during the two-year window the museum would
incur no liability.
MS. BEA SHEPARD, a representative of Museums Alaska, a statewide
organization of museums, stated support for CSHB 218(FIN).
Museums Alaska has been trying for a number of years to get this
legislation introduced because the museums are unable to handle
the abandoned collections they have on hand. The museums are
unable to do anything with the collections if they do not have
title to the items. CSHB 218(FIN) will provide an excellent
method of handling abandoned items.
MR. JOE LEAHY, the Executive Director of the Huna Totem Heritage
Foundation, informed committee members the Foundation is planning
to build a new cultural heritage center facility. As the former
director of the Last Chance Mining Museum in Juneau and the
Valdez Museum's historical archive program, he knows it is
extremely difficult for museums to manage their limited resources
while being burdened with excess property they have no title to.
He believes CSHB 218(FIN) is an excellent piece of legislation.
MS. DONNA MATTHEWS, Executive Director of Museums Alaska, which
represents 70 small and three large museums in the State, said
she is very eager to see this legislation enacted to help museums
clarify what to do with abandoned property.
There being no further testimony, SENATOR ELTON moved CSHB
218(FIN) from committee with individual recommendations and its
attached zero fiscal note. There being no objection, CHAIRMAN
MILLER announced CSHB 218(FIN) moved from committee.
HB 236-CREDITED PART-TIME SERVICE TRS
MS. PATTI SWENSON, staff to Representative Bunde, sponsor of HB
236, gave the following description of the measure. HB 236 will
correct an inequity in the Teachers' Retirement System (TRS).
Under the current system, teachers working more than 50 percent
of the time but less than full time receive only one-half service
credit for time worked. Teachers in this group contribute more
retirement dollars and do not receive the same benefit back when
they retire. HB 236 will correct this inequity by giving
teachers who work more than 50 percent of the time retirement
service credit based on time worked.
CHAIRMAN MILLER took public testimony.
MR. STAN FISCHER, a part-time teacher from Anchorage, stated
support for HB 236 because it corrects a fundamental unfairness
in credited service in the TRS for part-time teachers. This bill
retroactively amends AS 14.25.243 to allow part-time teachers who
work more than 50 percent but less than 100 percent to receive
credit for teacher retirement service based on actual time worked
and actual contributions made rather than the arbitrary
statutorily imposed formula of 50 percent. Presently he works 80
percent of the time and pays 8.65 percent of his salary toward
retirement, like full-time teachers. The Anchorage School
District makes a 12 percent contribution toward his retirement,
as it does for full-time employees. State law, however, only
permits him to receive a 50 percent retirement credit for his 80
percent service. He does not believe it can be reasonably argued
that part-time teachers should forfeit a portion of their
salaries. The cumulative effect of this law is not
insignificant. He has worked at 80 percent for five years and
because of the state law will lose one year of retirement credit.
MR. JOHN CYR, President of NEA-Alaska, stated support for HB 236
and thanked the sponsor for his hard work. This bill will
correct an inequity in the system.
SENATOR WILKEN asked Mr. Cyr to address the argument that this
change could be made in the negotiating process.
MR. CYR said it cannot. He explained the TRS is statewide so the
way teachers pay into that system and draw from that system is
not a subject of negotiation. The change must be made in
statute.
MS. KATHLEEN BRACKEN from Petersburg stated support for HB 236.
During three years as a 4/5 time kindergarten teacher, both she
and the school district contributed to TRS. Passage of HB 236
will compensate teachers fairly for the time and money they have
contributed to the retirement system. She added that inequitable
part-time credit is a major issue causing teachers to transfer
out of part-time teaching. Young learners and programs suffer
when a high turnover rate occurs. Alaska ranks 50th among the
states in recruitment for part-time employment.
MR. BILL CHURCH, Retirement Supervisor for the Division of
Retirement and Benefits, provided the following statistics
regarding part-time teachers who participate in TRS. Three
percent of the total TRS membership is comprised of part-time
employees. Of that three percent, approximately 57 percent work
contracts in excess of 50 percent. The Division of Retirement
and Benefits believes this bill will have no financial impact on
TRS.
SENATOR WILKEN asked if Section 2 is the retroactivity clause.
MR. CHURCH said that is correct.
SENATOR WILKEN asked if the Division estimated the financial
impact of Section 2 on TRS.
MR. CHURCH replied the Division's actuary was asked to look
specifically at past service liability questions when he analyzed
the bill. The actuary indicated there were no liability
questions so the zero fiscal note takes the retroactivity clause
into consideration.
SENATOR WILKEN moved HB 236 from committee with individual
recommendations and its attached zero fiscal note. There being
no objection, CHAIRMAN MILLER noted it was so ordered.
SB 205-EDUCATION OF EXCEPTIONAL CHILDREN
CHAIRMAN MILLER announced that a proposed committee substitute
(CS) was prepared for SB 205 (1-GS2003\D) and that an amendment
has been proposed by Senator Elton. He noted the CS adopts the
work done by the House HESS Committee [on HB 301, the companion
bill to SB 205] with one exception. The proposed CS removes the
repealer that eliminates the Department of Education and Early
Development's (DOEED) oversight authority on gifted and talented
programs in the individual school districts. The effect of
removing the repealer is that DOEED will continue to oversee
those programs. He asked Mr. Bruce Johnson to testify.
SENATOR WILKEN moved to adopt the proposed committee substitute
for SB 205.
CHAIRMAN MILLER announced that with no objection, CSSB 205(HES)
was adopted as the working document of the committee. He asked
Senator Elton to explain his amendment.
SENATOR ELTON moved to adopt Amendment 1 which reads as follows.
Page 4, add a new Sec. 9
Sec. 9. AS 14.30.315 is repealed and reenacted to
read:
Sec. 14.30.315. Programs for gifted children.
Every school district shall establish educational
services for gifted children that provide for
student identification, student eligibility,
student learning plans, and parental and student
participation including an appropriate review
process, consistent with regulations adopted by
the department.
Renumber the following sections accordingly.
CHAIRMAN MILLER objected for the purpose of discussion.
SENATOR ELTON explained that Amendment 1 provides in statute that
every school district shall establish services for gifted
children. Those services will identify the students, address
eligibility and student learning plans, establish parental and
student participation in the program and provide for an
appropriate review process. He pointed out that he has heard
concerns expressed that DOEED does not have appropriate
regulations. Amendment 1 specifies that DOEED will promulgate
regulations. He stated that when the revised foundation formula
was adopted (SB 36), the Legislature provided to each school
district a lump sum equal to 20 percent of their entitlement.
That money was to be used for several services, including
vocational education, special education, bilingual programs, and
gifted and talented programs.
Number 1534
SENATOR WILKEN asked if every school district has a gifted and
talented program.
MR. BRUCE JOHNSON, Deputy Commissioner of DOEED, said yes, every
district is charged with the responsibility of having a program
for identified students in their district. He said the programs
range from elaborate to programs for one or two children in a
school district.
CHAIRMAN MILLER asked if DOEED supports Amendment 1.
DEPUTY COMMISSIONER JOHNSON said DOEED proposed very similar
language on the House side to address the issue of gifted and
talented programs. DOEED believes that every child deserves to
have the best education that can be afforded that child.
SENATOR WILKEN asked Mr. Johnson to explain why Amendment 1 is
being considered.
DEPUTY COMMISSIONER JOHNSON explained that in 1990 the Individual
with Disabilities Education Act (IDEA) was adopted by Congress.
Alaska statutes were then adopted in 1993 to conform to IDEA.
In 1997 Congress amended IDEA. Between 1997 and the spring of
1999, the federal government worked on regulations to interpret
the reauthorization and amendments that occurred in 1997. Since
that time, DOEED has been reviewing those regulations to
determine the impacts on Alaska's statutes. Alaska was out of
compliance in some cases and its statutes had a peculiarity in
that they define "exceptionality" to include both students with
disabilities and gifted students. The federal government does
not recognize the category of gifted students as an
exceptionality. During a federal monitoring review, DOEED was
cited for co-mingling state and federal funds it used to fund
both categories of students. DOEED then went on record saying it
will not use federal funds in that way, but no general funds have
been appropriated for gifted and talented programs.
DEPUTY COMMISSIONER JOHNSON surmised that this issue belongs at
the local level. School districts receive funds for gifted and
talented programs as part of the 20 percent adjustment that was
made in SB 36. DOEED believes that SB 205 clarifies the State's
role in the education of exceptional children and assures that
DOEED will be in compliance with federal requirements. DOEED is
concerned that at some point the federal government might
question whether or not to continue to provide DOEED with the $14
million it provides to offset some of the costs of educating
children with disabilities.
In summary, DEPUTY COMMISSIONER JOHNSON said SB 205 will make
Alaska statutes consistent with federal statutes; it will offer
guidance to school districts and eliminate ambiguity; and, if
enacted, it will help DOEED develop regulations with clarity
regarding programs for both students with disabilities and the
gifted and talented program.
SENATOR WILKEN asked how Amendment 1 will affect the 20 percent
amount in the foundation formula and whether it will require
school districts to come up with more money on their own to
establish gifted and talented programs.
DEPUTY COMMISSIONER JOHNSON replied Amendment 1 will basically
cause a school district to establish a program at the local level
as well as the parameters of that program. DOEED will get out of
the business of regulating, monitoring and providing oversight
because it does not have the capacity to do that.
Number 1768
SENATOR ELTON explained that Amendment 1, in conjunction with the
deletion of the repealer, does say that gifted and talented
programs shall be provided. He said, "It also empowers parents
of gifted and talented children somewhat because of the 20
percent provision in SB 36. There is a common assumption, one
that I certainly have, that because GT is a listed component of
that categorical funding, that there is an expectation and, in
fact, there is legislative direction that that 20 percent
categorical funding should be used, at least in part, for GT
programs."
DEPUTY COMMISSIONER JOHNSON responded, "Chairman Miller, Senator
Elton, that, I believe, is a correct characterization of what we
would have if this amendment were adopted in relationship to what
was put in law as the result of SB 36."
CHAIRMAN MILLER announced a brief recess from 2:10 p.m. to 2:11
p.m.
SENATOR ELTON proposed an amendment to Amendment 1 to ensure that
paragraph B is retained.
CHAIRMAN MILLER clarified that Amendment 1 would be the new
paragraph A and the old paragraph B which is currently in
statute. Without objection, CHAIRMAN MILLER announced that
Amendment 1 as amended was adopted.
Number 1852
SENATOR ELTON referred to the language in Section 3(a)(5) of CSSB
205(HES) which reads, "(5) a district that provides a statewide
correspondence study program for a child with a disability who is
enrolled in the program." He asked how a child enrolled in a
statewide correspondence program would be given services for
speech pathology, for example.
DEPUTY COMMISSIONER JOHNSON explained that Alyeska would have the
responsibility of finding that service for the student through a
contract.
SENATOR ELTON asked if Alyeska contracted with the Fairbanks
School District for those services, for example, how the funding
for that student would be allocated.
DEPUTY COMMISSIONER JOHNSON said funds could be allocated to both
the Fairbanks School District and Alyeska; it depends on how the
student elects to approach it. A student can be dual enrolled or
the student could be enrolled part-time in each, or full-time in
one with a contractual relationship with a certified individual
for certain services.
SENATOR ELTON referred to Section 5 on page 3 and asked if a
school district is now required, under another statute, to notify
parents of the procedural safeguards. He asked if the 12 month
deadline kicks in once a parent is notified. Senator Elton said
he is asking because he has heard concerns expressed that 12
months may not be a long enough time period.
DEPUTY COMMISSIONER JOHNSON replied that DOEED believes that 12
months will provide adequate time. The school districts are
providing appropriate notification and 12 months is a reasonable
amount of time in light of the tremendous staff turnover that
occurs in Alaska. He pointed out that in the school districts in
which he has worked, whenever the school district is reviewing a
recommendation that a student be evaluated, the first thing the
school district does is hand the parents the procedural
safeguards so that they know their rights as a family from the
start.
DR. P.J. FORD SLACK, Program Administrator of Special Education
at DOEED, verified that Deputy Commissioner Johnson is correct,
but it gets a little murky because the IDEA requires that parents
have an informed understanding of the procedural safeguards and
that can cause some problems. She repeated that the 12 month
time period starts at the time the parents receive the procedural
safeguards.
SENATOR ELTON asked for clarification.
DEPUTY COMMISSIONER JOHNSON explained that federal regulations
require that a copy of the procedural safeguards for a child with
a disability must be given to the parent at a minimum upon
initial referral for evaluation, upon each notification of an
Individual Education Plan (IEP) meeting, upon reevaluation of the
child and upon receipt of the request for due process.
Number 1852
SENATOR ELTON referred to Section 9 on page 4, and asked in what
situation a surrogate parent would represent a child with
disabilities.
DR. FORD SLACK explained that a surrogate parent is part of the
IDEA and has been a part of the special education process since
PL 94-142 which was enacted in the mid 1970's. The surrogate
parent is an educational advocate in the case of a child.
Because IDEA is viewed as a civil rights law for the child, it
requires the school district or the educational agency to have an
agent at a meeting if a parent is not available. All school
districts must maintain a list of surrogate parents which have
very specific requirements. The states can decide whether to
include foster parents with the caveat that foster parents must
be able to show they have had a long term educational interest
with that child. Surrogate parents are not guardians ad litem.
Although a guardian ad litem may be appointed for a child, the
school district would still be responsible to have a surrogate
parent at an IEP meeting. That surrogate would ask for
evaluations and/or call for a change in the IEP or placement.
DOEED must provide training to the school districts to train
surrogates about IDEA and its regulations.
CHAIRMAN MILLER asked if Section 9 is in existing law but it
narrows the definition to children with disabilities.
DR. FORD SLACK said that is correct.
CHAIRMAN MILLER announced that due to scheduling conflicts, the
committee could only meet for another 40 minutes and that 25
people were waiting to testify. He noted if time does not permit
all 25 people to be heard, the committee will meet on Friday. He
stated he will take teleconference testimony and asked
participants to limit their testimony.
MR. NELSON HUBBELL, a parent from Anchorage, expressed support
for SB 205 and encouraged legislators to do everything necessary
to ensure that gifted education continues as provided for under
existing law to the extent possible. He pointed out that the
companion House bill removes gifted students from special
education and makes those services discretionary with each
individual school district. He encouraged committee members to
ensure that the Senate does no such thing, and instead to
increase gifted and talented programs in Alaska. The survival of
these children and their special gifts is at risk under the House
bill. [Some of Mr. Hubbell's testimony was inaudible due to
transmission difficulties.]
CHAIRMAN MILLER announced that copies of Amendment 1 would be
faxed to all Legislative Information Offices. He explained that
Amendment 1 will require every school district to establish
programs for gifted and talented students.
MR. HUBBELL said he is concerned that the procedural protections
for parents under the new bill will be considerably weaker than
they are under existing law.
TAPE 00-17, SIDE B
Number 000
MS. PAMELA BICKFORD, a resident of Fairbanks, asked the committee
to consider the following issues regarding SB 205. First, line
14 on page 1 should be deleted and replaced with the following
phrase, "develop procedures for implementing and enforcing state
and federal laws and regulations pertaining to the education of
exceptional children." The rationale for that change is that
school districts should automatically qualify if they follow the
procedures for implementing and enforcing state and federal laws.
MS. BICKFORD said that second, AS 14.30 should be amended to
provide statutory authority for state complaint procedures when
it comes to appealing to the Alaska Superior Court. Prior to the
1997 amendments to IDEA, the appeal from a state complaint
procedure went to the U.S. Department of Education. The
regulations of 1999 eliminated the appeal to the Secretary of
Education. She said, "At present, we are under administrative
procedures in court and have no state authority for being there
other than the Administrative Procedures Act which is not
adequate for what we are arguing."
MS. BICKFORD commented that the 12 month period in Section 5 on
page 3 should be extended to a 24 month period for personal
injury as for any other tort case. A 12 month period is not
adequate. A change to 24 months will prevent the need to make
exceptional notice at each and every meeting.
MS. BICKFORD'S fourth point was that the word "random" on line 22
of Section 6 on page 3 should be changed to "rotating." A
qualified hearing officer on the list should not be disqualified
for any other reason than a conflict of interest. As Section 6
presently reads, a parent has a choice of three hearing officers
and the department can pick at random from the list.
MS. BICKFORD'S last comment was that she would like to see due
process hearing decisions and complaint decisions posted on the
web.
CHAIRMAN MILLER asked Ms. Bickford to provide the moderator at
the Legislative Information Office with copies of her proposed
amendments so that they could be faxed to the committee.
MS. BICKFORD agreed.
MR. MIKE HARPOLD, a city council member from Ketchikan and past
president of the Ketchikan Gateway Borough Board of Education,
made the following comments. He thanked Senator Elton for his
amendments. Children with disabilities are protected by existing
law but unfortunately the Department of Education moved to strip
those same protections for the gifted and talented population.
He very much supports Senator Elton's effort to make sure the
local school boards provide services needed for that population.
MS. MARGO WARING, a Juneau parent of a gifted student, said she
was speaking on behalf of a number of parents and said she and
they are greatly relieved at the adoption of Amendment 1. It
shows the committee's recognition of the needs of gifted and
talented students that have been recognized in Alaska statute for
the past 30 years. She informed committee members that their
action does not affect gifted and talented students only.
Educational research has shown that doing the best for gifted and
talented students raises the level of academic achievement of all
students in school.
MS. WARING made the following suggestions regarding the bill and
the amendment. Section 9 could be made stronger by requiring
regulations by a time certain date. The department has had
gifted and talented education for decades and has not managed
regulations. Including a time certain date will provide an
incentive to complete that process. In addition, the procedural
safeguards, such as IEPs and due process hearing rights, that are
now being reinstated, should be a function of DOEED because
otherwise local school districts are being asked to be the appeal
body for local school district decisions. The special education
law recognizes that is not an effective way to run a show. She
asked that the same function be retained by DOEED for gifted
students. She said regarding a possible fiscal impact, that
service is provided by DOEED today. She doubted that many
appeals occur because the usefulness of those provisions is
created by the fact that a school district knows a parent has
that option.
MS. WARING stated Deputy Commissioner Johnson would prefer that
DOEED not take on the role of regulator and monitor of gifted and
talented programs. She felt the regulations will make them
regulators anyway. Ms. Waring felt the procedural safeguards
will ensure that people will come together first and that when
rights are violated there will be a body to appeal the violation
to. She urged committee members to consider maintaining the
procedural safeguards that are currently part of the services
offered to gifted and talented students.
CHAIRMAN MILLER asked Ms. Waring to provide a written copy of her
comments to committee members.
MR. ROBERT CLINK of Anchorage echoed Mr. Hubbell's comments and
said the addition of Amendment 1 definitely helps to allay some
of his fears but unfortunately, it looks as though it is a camel
in a big desert. The population of students in the Anchorage
School District is 10 times higher than any of the other district
of the State so managing the whole process is more complex and
expensive than for other school districts in the State. He has
two children in the gifted and talented program and a third is
being tested. He also agrees with Mr. Hubbell that definite
guidelines for recourse need to be provided because sometimes
good fences make good neighbors. He thought the number of IEP
appeals that have occurred in the past is relatively low
considering the fact that parents participate in the design of
the program for their children. His concern is that Amendment 1
does not go far enough in providing guidelines. He suggested
giving parents the same recourse as parents of a child with a
disability have.
Number 1851
MR. PHILLIP MUNGER, a parent of two gifted and talented children,
thanked Senator Elton for his amendment. He noted that one
section that was added to HB 301 requires DOEED to provide the
legislature with a side-by-side comparison of the federal and
state requirements for special education services. He felt that
to be "bogus" because preparation of such a report will be time
consuming and not very useful.
SENATOR ELTON said he believes the special report requirement is
in CSSB 205(HES). He noted that sometimes the Legislature asks
the departments to report back so that the Legislature can
monitor the progress they are making on a specific issue.
CHAIRMAN MILLER asked any participants in the audience with
written testimony to provide a copy to the moderator of the
Legislative Information Office to be included in committee
members' files.
MS. CINDY BENNER of Fairbanks thanked Senator Elton for Amendment
1 and echoed the comments of Ms. Waring. She emphasized that she
believes that statewide oversight is important. The school her
children attend is very supportive of the gifted and talented
program but she knows not all school districts in the State are.
Ms. Benner said the educators, parents and administrators
involved in gifted and talented programs in her area would like
to be involved in the process of writing the regulations with
DOEED.
SENATOR ELTON noted that he worked with Chairman Miller and other
committee members to draft Amendment 1.
MR. ROBERT BRIGGS, Disability Law Center of Alaska (DLCA), asked
committee members to adopt and pass out Version D of SB 205 with
a "do pass" recommendation and a request to waive its referral to
the Senate Finance Committee. Compliance with IDEA-97 and its
implementing regulations is a very important task that DOEED has
in front of it. That task will not be finished with the passage
of this bill. DLCA takes exception to some fine points of CSSB
205(HES) which he provided in written form to committee members.
He offered to answer questions.
CHAIRMAN MILLER asked Mr. Briggs to discuss DLCA's position on
the statute of limitations.
MR. BRIGGS replied the bill originally contained a six month
statute of limitations so DCLA was gratified to see it increased
to 12 months. DCLA's legal analysis is that when the state
adopts a statute of limitations to be applied to the exercise of
a federal right, it should adopt a statute of limitation that is
most analogous to a similar state cause of action. AS 09.10.070
is the most analogous and contains a 24 month time period. He
noted it is a legal fine point and should not keep the bill from
moving forward but he does believe it is an issue that may be
challenged in court by someone down the road.
SENATOR ELTON asked Mr. Briggs if he is more concerned about the
legal risk to the State rather than the time period allowed for
parents.
MR. BRIGGS said that is close to how he would put it. First of
all, both the parent and the child have a right under the IDEA
but the paramount right lies with the right of the child. The
issue needs to be clarified in terms of when can a child be a
cause of action for failure to deliver a free and appropriate
education. Some states have a 12 month statute of limitations
because that is the most analogous. The issue is the comparison
of a state right of action versus the federal right of action
under the IDEA. The conclusion drawn by courts and by the U.S.
Department of Education's Office of Special Education is that the
state cause of action should not have a longer period of repose
than the statute applied for bringing that right in a state.
CHAIRMAN MILLER referred to the proposed amendment on page 2 of
Mr. Briggs's letter regarding parental consent and asked Mr.
Briggs to explain it.
MR. BRIGGS said the issue was raised in the House HESS Committee
about parental consent. Version D [Section 3(c) on page 3] was
amended to read,
A parent who elects to educate a child as allowed under AS
14.30.010(b) may refuse the special education related
services provided under AS 14.30.180-14.30.350. A school
district that disagrees with a parent regarding the
provision of special education and related services may
attempt to resolve the disagreement by mediation or may
request a hearing as provided under AS 14.30.193.
MR. BRIGGS said this bill appears to authorize a parent who has
chosen an alternate route of education for the child to refuse
special education services while that same right of refusal is
not clearly afforded to parents who choose to continue to have
their children educated in the public school setting. One
concern is whether that comports with equal protection under
Alaska's Constitution as well as the U.S. Constitution. The
other concern is that the regulations that implement IDEA '97
very clearly state that if a state adopts a specific law,
regulation or policy regarding parental consent, there must also
be effective procedures to ensure that a parent's refusal to
consent does not result in a failure to provide the child with a
free and appropriate public education. These regulations
recognize that ultimately the purpose for the law is to ensure
that the child has a right to a free and appropriate public
education, not that the parent has a right to refuse or control
that child's education. The regulations suggest that if a school
district believes that a parent's refusal to agree to a
particular activity or service will ultimately deny that child a
free and appropriate education, the school district should be
compelled through state procedures to ensure the child receives
the appropriate education. If mediation fails, an administrative
hearing could be held and the administrative officer could
overrule the parent's decision. DCLA has drafted a proposed
amendment to avoid conflict between the federal regulation to
maximize parental control over their child's education.
CHAIRMAN MILLER asked a representative of DOEED to respond to Mr.
Briggs's proposed amendment.
DEPUTY COMMISSIONER JOHNSON said he and staff met with DCLA staff
the previous evening over the proposed amendment. He pointed out
this was a hotly debated issue in the House HESS Committee.
Essentially, he believes the proposed amendment addresses a
situation in which a parent disagrees with a service that has
been determined through the IEP process as appropriate for the
student. In that case, the parent may not unilaterally jerk the
service away because the district team is responsible for
determining whether or not an appropriate education program is
being provided. The service could be eliminated if the team
concludes it will not affect the child's overall program. On the
other hand, if the team feels that the service the parent is
rejecting is so necessary that there is no way to provide an
appropriate education without it, then the district must pursue
an administrative remedy. This is very much a reversal of how
things normally work. He does not believe this would happen
often because he believes school districts do everything possible
to accommodate the desires of the parent but there may be
circumstances that are so severe that a school district might
insist.
SENATOR ELTON asked if a district would be subject to sanction by
the U.S. Department of Education if it does not provide those
services because the parent has refused them.
DEPUTY COMMISSIONER JOHNSON explained it would have nothing to do
with the federal government but it would have to do with
monitoring at the local level so districts would be held
accountable by DOEED. If the district was not providing an
appropriate education, DOEED would cite the district and require
corrective action. One of the challenges is that if a parent
does not want a service, a district does not want to drive that
parent away from other services that might be available.
SENATOR WILKEN asked if DOEED likes the DLCA amendment.
DEPUTY COMMISSIONER JOHNSON replied the proposed language is fine
with DOEED. He advocated for something very similar in the House
HESS Committee. DOEED believes it should outline in statute that
a district is compelled to pursue administrative hearing
procedures if it believes that an appropriate public education is
being denied. The federal law is clear that a district does have
that obligation.
SENATOR WILKEN mentioned that Mr. Briggs recommended a 24 month
time period for appeals because of how that would flow through
our legal process. He asked the Deputy Commissioner to comment.
DEPUTY COMMISSIONER JOHNSON stated that DLCA is referring to
legal/judicial kinds of remedies but what is being talked about
here are administrative procedures. He said one could draw that
analogy but he does not believe it is necessary.
MS. ROBIN TAYLOR, a parent and attorney from Anchorage, described
her daughter's difficulties as a gifted and talented student in a
non-challenging program and the improvements she has seen in her
daughter with a more appropriate placement. She suggested that
the proposed amendment is a band-aid approach and that a better
solution is to change the definition to "exceptional children" in
all applicable statutes so that two classes of exceptional
children are not created. She believes that exceptional children
at all levels should be entitled to the same services otherwise
the Legislature will be creating two classes of special needs
children; those with disabilities and those with gifted and
talented issues. That cannot and will not withstand legal
scrutiny. The amendment creates a lower class of special needs
children with the amendment, gifted and talented children will be
discriminated against because they have less protection. All
educational research shows that gifted children are as much in
need of special education services as children with disabilities.
Finally, by eliminating for gifted and talented children the
legal protection that exists for all exceptional children, the
Legislature will not only improperly be creating a separate class
of exceptional children, but it will be giving rights to those
children without a remedy. If the Legislature gives them the
right to special education through this amendment without IEP
protection, appeal rights, or transportation, the students cannot
avail themselves of those services. She repeated the best
resolution to the problem is to change the definition to what it
was.
CHAIRMAN MILLER said his understanding is that the problem lies
in the fact that the federal law does not address gifted and
talented programs so he is not sure how that squares with Ms.
Taylor's concerns.
MS. TAYLOR replied, "That's why we have lawyers and lawsuits,
sir."
MS. CHRIS CASLER asked committee members if they received a
document that she recently faxed to them entitled, "Silverman's
Chart of Provisions for Exceptional Learners."
CHAIRMAN MILLER said committee members have not received it yet.
MS. CASLER informed committee members that she is the mother of
two gifted sons and a member of the Extended Learning Program
Advocacy and Advisory Group for the Wasilla middle and high
school. She thinks it is imperative that there be statewide
oversight of gifted and talented issues. Although the DOEED does
not want to be an overseer, the federal government forces it to
do that for disabled students. Senator Elton's amendment is
wonderful but without due process and procedural safeguards, it
leaves gifted students and their educational process very
vulnerable to the whims of the district. She suggested that
committee members incorporate a statement into the bill that
guarantees procedural safeguards as outlined by IDEA for disabled
students.
MS. CASLER asked the committee to consider, regarding the statute
of limitation question, that two years is a long time in a
student's school life and that a lot of damage can be done over
such a long time period. She believes 12 months to be reasonable
while six months is more effective.
CHAIRMAN MILLER asked Ms. Casler to resend the document she
referred to earlier.
MS. CASLER explained that the chart she referred to was outlined
by Linda Silverman who is an expert in the field of gifted and
talented education. Ms. Silverman compared standard deviations
above and below the norm of an IQ of 100. The chart shows the
recommended programming for students who fall in the first,
second, third and fourth standard deviations above and below the
norm. The chart shows there are more similarities than
differences which underlines the need for protection for gifted
and talented students under the law.
SENATOR ELTON asked anyone from Juneau who did not get a chance
to testify to call his office if they cannot attend Friday's
meeting.
CHAIRMAN MILLER apologized to those who did not get a chance to
testify today and announced that the committee will continue this
discussion on Friday at 1:30 p.m. He again asked those with
written testimony to give copies to the moderators at the
legislative information offices. He then adjourned the meeting
at 3:10 p.m.
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