Legislature(1999 - 2000)
04/06/2000 03:07 PM House HES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 301 - EDUCATION OF EXCEPTIONAL CHILDREN CHAIRMAN DYSON announced that the next order of business would be House Bill No. 301, "An Act relating to the education of exceptional children; and providing for an effective date." Chairman Dyson noted that he only intended to take answers to questions from the committee. He announced his intention to entertain amendments. Chairman Dyson announced that before the committee is committee substitute (CS), version G [GH2003\G.1, Ford, 4/6/00]. Number 1529 REPRESENTATIVE BRICE made a motion to adopt Amendment 1, which reads: Page 3, following line 8: Insert a new subsection to read: "(c) A parent who elects to educate a child as allowed under AS 14.30.010(b) may refuse the special education and 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." Page 4, lines 27 - 28: Delete ". A parent who teaches a child at home may refuse special education and related services" There being no objection, Amendment 1 was adopted. Number 1554 REPRESENTATIVE KEMPLEN made a motion to adopt Amendment 2, which reads: Page 4, line 17, Section 9 After the last sentence add the following: A charter school may be organized to meet the requirements of this section. Page 2, line 15, Section 2 add the following after the words "special education": including gifted and talented, Number 1559 REPRESENTATIVE COGHILL objected for purposes of discussion. REPRESENTATIVE KEMPLEN explained that the purpose of this amendment is to give direction to the issue of gifted and talented programs. There are two components to this amendment. The first part gives some explicit opportunity for parents and a school district. If the parents are dissatisfied with how the school district is providing services towards gifted children, they could organize and create a charter school for the gifted and talented. The second part of the amendment includes gifted and talented in the department's annual report. When the Department of Education & Early Development (EED) provides its analysis of how the special education needs of students in Alaska are met, the department will also have an analysis of how the needs of the gifted and talented are met. The legislators will have some concrete data to use for making decisions. REPRESENTATIVE COGHILL said he might be in favor of one part and not the other and asked if the amendment should be divided up. CHAIRMAN DYSON said that could be dealt with in a minute. He asked what this amendment would do to the Department of Education & Early Development and if it will pick up a fiscal note. Number 1707 BRUCE JOHNSON, Deputy Commissioner of Education, Department of Education & Early Development (EED), came forward to answer questions. He stated that the EED does not believe it would require a fiscal note. The charter schools can be established for a variety of purposes including this particular purpose. The EED would do a report. The report may have more to do with what districts are doing than anything the department is doing depending on how the bill eventually is formulated. CHAIRMAN DYSON asked if the second part is added [to the annual report], will that produce a significant workload for the EED. DR. JOHNSON answered there would be some work associated with that. The special education staff could not deal with it; other staff would have to put that report together. A lot of data is now collected from schools in the form of school report card information, and that is done by regulation. This information could probably be collected at the same time; it wouldn't go into the school report; it would be used for this other purpose. The committee took an at-ease from 3:40 p.m. to 3:42 p.m. REPRESENTATIVE COGHILL withdrew his objection. CHAIRMAN DYSON asked if there was any more objection. There being none, Amendment 2 was adopted. Number 1788 REPRESENTATIVE COGHILL made a motion to move Amendment 3 which reads: Page 4, line 11: Delete lines 11 - 17 Number 1791 REPRESENTATIVE BRICE objected for purposes of discussion. REPRESENTATIVE COGHILL said this amendment takes out Section 9. His intention is in establishing a gifted and talented program, it should be something the state should allow but not necessarily direct. The actual statute AS 14.30.315(b) states "Nothing in this section prohibits the department from requiring approval of programs of special education and related services for other categories of exceptional children." He understands that is very permissive, but he believes it would be better, in dealing with IDEA [Individuals with Disabilities Education Act] to leave the old statute than put the new section in. The committee took a brief at-ease from 3:43 p.m. to 3:44 p.m. Number 1869 REPRESENTATIVE COGHILL said AS 14.30.315 is presently in statute. He doesn't want to repeal it and reenact it. There would be nothing in this statute that prohibits the department from requiring approval of programs for special education related services for other categories of exceptional children. He understands that is very permissive. Rather than having gifted and talented specifically directed in this bill when it seems like there is going to be some problem with the federal law, it would be better to leave the state law as it is. REPRESENTATIVE KEMPLEN stated his concern with this amendment is that it effectively eliminates all protections for gifted and talented students in Alaska. He has heard enough concern from parents of gifted and talented children about the elimination of procedural safeguards. This amendment may go too far in how it eliminates support for gifted and talented children in Alaska. REPRESENTATIVE COGHILL said the title of the description under AS 14.30.315 is Programs for Gifted Children. Frankly, this bill itself is not going to be funding any gifted and talented programs. Neither are the federal dollars coming with this IDEA program. This will have to go to the Finance Committee whether its under the repealed and reenacted section or whether it is under this. It seems to him that this gives a broader latitude, but it is not a directive. That debate has yet to happen, and he doesn't know if that debate should happen under this bill. The existing law as it is gives plenty of latitude for that. CHAIRMAN DYSON asked Dr. Johnson for the department's perspective on this. Number 1989 DR. JOHNSON said the department does not object to this change, although this opens up the conversation for a future discussion about public policy related to gifted and talented and how this state wants to address it. The department proposed the language in the CS as a result from feedback received from various individuals who thought there needed to be some protection for current gifted and talented programs. The department felt that made some sense. REPRESENTATIVE COGHILL asked Dr. Johnson if the IDEA really deals with the federal government views that this law fulfills a civil right and under gifted and talented that is not necessarily true. He believes the two are being mixed here. It is a legitimate public policy debate. All he is saying is that in this bill, he doesn't know if gifted and talented should be addressed for fear that they may trip over themselves. He is afraid that a civil right issue and another issues may cause trouble for this bill down the road. Leaving the statute as it is, leaves it open for that public debate. This bill may close it down. Number 2052 DR. JOHNSON said to Representative Coghill that clearly the department tripped over what the federal government asked the department to do with the federal funds because the funds were co-mingled for children with disabilities and identified gifted and talented. It is correct that the cleanest way to deal with this would be to have two separate bills: one dealing with gifted and talented and another with disabilities. Regardless of how it comes out, the department has clear marching orders from the federal government in terms of how federal money can be spent, and the dollars will not be co-mingled. CHAIRMAN DYSON said the bill before the committee does indeed separate out the gifted and talented from the children with disabilities. The federal government is telling there can't be co-mingling of funds. He understood that the bill the EED submitted made at least some of the options of how education deals with gifted and talented more of a local prerogative. He asked Dr. Johnson if that was correct. DR. JOHNSON answered that is correct. CHAIRMAN DYSON said so when Representative Kemplen says some of the protections are being removed for the gifted and talented program has more been done in the bill to strengthen making that a local prerogative. He asked if that was a fair inference. DR. JOHNSON answered that yes, the EED attempted to do that. The EED felt that to move from having the protections that came with IDEA previously in the law for GT to nothing was not in the best interest of GT students in the state. The EED tried to craft language in AS 14.30.315 that would require the local school district to identify GT students, serve them and also have an appeal process at the local level. If parents were unhappy with any portion of the program, they would have a redress at the local level. Since there are no federal or state dollars in EED to do that, the department needed to extract itself. The language was written to clearly accomplish that. Number 2158 CHAIRMAN DYSON asked Dr. Johnson what Representative Coghill's amendment does to that goal of the department. DR. JOHNSON answered he believes it makes it more permissive. It doesn't require a local school district to offer a program. REPRESENTATIVE BRICE asked Dr. Johnson how that would fit under the regulations that are being written on the gifted and talented program. Number 2182 DR. JOHNSON answered there are going to be two chapters of regulation. A lot of work has been done on the disabilities side and very little work done on the gifted and talented side. Gifted and talented could end up in chapter 53, which is a new chapter that specifically would outline the responsibilities of school districts for the gifted and talented population. REPRESENTATIVE BRICE asked if the EED is currently moving ahead with the regulations on gifted and talented. DR. JOHNSON replied yes, although what the department would like to do is have the statute in place as the regulations are developed so "they are not wandering around in the field." A lot of work has been done because it is a huge effort, but certainly there is the commitment if the bill were to pass in the form of the CS, that the EED will have an obligation and will come forth with regulations to support the services of GT students at the local level. Number 2220 REPRESENTATIVE COGHILL said it is permissive because this new reenacted language is very directive that every school district shall establish a program for these services. He finds that troublesome in the context of what HB 301 is trying to do with IDEA. He asked if there has been any legal action on Alaska for not complying with IDEA or is it just a threat that the money will go away. DR. JOHNSON explained that at this time the EED is under corrective action which means there may be sanctions in the future if the EED doesn't come into compliance with federal law. REPRESENTATIVE COGHILL asked if this skirts that then. He asked if this isn't close to non-compliance. DR. JOHNSON answered the EED doesn't believe so the way this is put together. The federal government will obviously review this when it comes forward with the monitoring review. The federal government prefers that the EED doesn't co-mingle any GT issues with children with disabilities issues clearly. That is the cleanest way to do some things. As the EED looked at a strategy to accomplish what it needed to do to protect the federal funds and to assure the EED was in compliance with the civil rights issues around IDEA and serve children with disabilities, the EED felt this was a good strategy to separate the GT issue totally out of the entire statute, have a specific section and only a single section that deals with it beyond definitions and go in that direction. REPRESENTATIVE COGHILL said they agree that it is a separate issue. Putting this in this bill hooks it to this issue almost inextricably. Leaving in the language statutorially allows the EED to go to another title. That is a separate debate that needs to happen. He just doesn't know if it is wise to have it in this bill. He is sure this will be revisited in an emergency situation. He is not against the gifted and talented as far as the debate goes; he might debate on the wrong side of it, but at this point, he believes there could be problems. Number 2319 REPRESENTATIVE KEMPLEN said Dr. Johnson mentioned that the EED has an obligation to craft regulations as the CS is currently laid out which has the mandate to local school districts. If that section is taken out that mandates the school districts to have a gifted and talented program, which is what this amendment does, does that remove the EED's obligation to craft regulations. It seems to him the EED would no longer need to craft regulations if there is no mandate by the state for school districts to have a gifted and talented program. TAPE 00-42, SIDE B Number 2344 DR. JOHNSON said that issue hadn't been discussed. That line of reasoning is not out of line at all. There would be nothing to compel the department if the reference to gifted and talented is removed from this bill. There would be regulations in place that are not attached to any statutes. REPRESENTATIVE COGHILL asked if the department has to go to the legislature for funding the gifted and talented program, or is it going to be funded within the department without a legislative funding request. He asked if it would be a BRU [Budget Review Unit] or will each district be on its own. Number 2307 DR. JOHNSON said if the CS would pass as written, the department would see the responsibility at the local level. There are no dollars coming in from the state to the department; the funds go directly to the individual school districts in the 20 percent received for vocational education, special education and ... REPRESENTATIVE COGHILL interjected because of that, it should be more permissive. REPRESENTATIVE WHITAKER asked if the amendment as proposed does not affect funding. DR. JOHNSON agreed it does not affect funding. Number 2274 REPRESENTATIVE WHITAKER asked if it allows local districts to decide the disposition of gifted and talented programs within their districts. DR. JOHNSON answered that districts must provide a program for the gifted and talented population. How that is done or how extensive it is would be left to the discretion of the individual school districts under the CS. REPRESENTATIVE WHITAKER said assuming the amendment, the "must" would be extracted from Dr. Johnson's statement and a "may" would be inserted. DR. JOHNSON answered yes, that is his understanding of the amendment. REPRESENTATIVE WHITAKER asked if he is missing anything beyond that that directly relates to the amendment. DR. JOHNSON answered not that comes to his mind. He believes it is straightforward, and Representative Whitaker has clarified the issues on this particular amendment. Number 2221 CARL ROSE, Executive Director, Association of Alaska School Boards, came forward to testify. He said he believes the amendment would be appropriate to allow latitude. If not, it would be a large unfunded mandate on the local schools. REPRESENTATIVE KEMPLEN said his concern is while the proper public approach to the gifted and talented is addressed, the protections should not be eliminated for the gifted and talented programs out there now. Those protections should be maintained as that dialogue happens in the future. He asked for a "nay" vote on this amendment. CHAIRMAN DYSON asked Representative Kemplen when he says "protections" he is meaning directive mandating language as opposed to permissive language. REPRESENTATIVE KEMPLEN answered yes. A roll call vote was taken. Representatives Whitaker, Morgan, Coghill and Dyson voted in favor of Amendment 3. Representatives Brice and Kemplen voted against it. Representative Green was absent. Therefore, Amendment 3 was adopted by a vote of 4-2. Number 2147 REPRESENTATIVE COGHILL made a motion to adopt corrected Amendment 4 which read: Page 1, line 12 Delete "shall" Page 1, line 13: Delete subsection (1), subsection (2) and subsection (3); page 1, line 12, after the words "The department may" Insert: , notwithstanding any other provision of AS 14.30.180 - 14.30.350, may (1) do all things necessary to qualify for federal funds that are available to the state for the education of exceptional students; (2) adopt regulations necessary to comply with AS 14.30- 14.30.350. Page 2, line 7: Delete: (4) Insert: (3) Page 5, line 5, after "14.30.285," Insert: 14.30.335, page 5, line 2: Delete: "under state and federal law, including regulations adopted by the department;" page 5, line 2: Insert: under state law; Number 2144 REPRESENTATIVE BRICE objected. REPRESENTATIVE COGHILL said this whole bill is saying Alaska is going to give the federal government absolute control over what is done in Alaska with very little framework, and he objected to doing that. He referred to page 1, line 13, "do all things necessary to continue state eligibility ..." His real objection is the whole section (2), page 2, line 2, which says on line 3: " ... and other federal law related to children with disabilities; if a provision of AS 14.30.180 - 14.30.350 conflicts with federal law and the conflict would affect the continued receipt of federal money, the department shall comply with the federal provision necessary to ensure continued receipt of that money;" He said what effectively is being done is putting the state statute under the authority of the federal law, whatever it is and whenever and however it is changed, the state doesn't get the purview. REPRESENTATIVE COGHILL reviewed the amendment for the committee. The rationale behind the changes are to do things necessary to install IDEA but not to give a carte blanche authority for that. The amendment says if there is going to be a change in this law, it has to go through the legislative process. If that isn't done, then the department will be able to write regulations, the law can change, and the legislature will be out of the purview of it, and the legislature will be continually asking questions that it doesn't understand the federal law. It will be continually in the dark. "I think we're treading on really poor constitutional ground here but if nothing else, the people of the state of Alaska, as far as the legislature is concerned, lose their part in the discussion. Those folks watching on television don't get to see any of it." Page 5, line 2, is a critical part of the argument; change line 2. That way the law of the state has to be changed every time the federal government changes IDEA. REPRESENTATIVE BRICE referred to page 1, line 11, and agreed that "things" needs to be changed because it is very vague. He pointed out that the language on page 1 refers to the department being able to create regulations, which it should do; however, page 2 says it can't [create those regulations]. Although he agreed that referencing the federal law that can change without the state is of concern, he would prefer that they adopt standards above and beyond what the federal law has and put those into statute. He believes what is being done here is basically creating an endless loop that never arrives at the desired answer and basically removes any legislative oversight in the development of special education laws in Alaska. He said, "I appreciate what you're [Representative Coghill is] trying to say; I don't think we get there with Amendment 4 so I would probably say I oppose it." REPRESENTATIVE KEMPLEN referred to the language "do all things necessary to qualify for federal funds" and remarked, "...talk about opening up the barn door and letting all the animals out." For example, if the federal government were to require that all exceptional students had to be blood tested or had to have national identification cards, this certainly authorizes the department to comply with that [federal requirement] without having to come to the legislature. This is broad language. Number 1814 REPRESENTATIVE COGHILL said he was willing to change that, but he pointed out that the aforementioned language is already in the CS. REPRESENTATIVE WHITAKER said that was the point he was going to make. However, although "things" is in the CS, the latitude provided for by the amendment is not in the CS. The CS says "shall," the amendment says "may." Therefore, Representative Whitaker said he is going to support Amendment 4. CHAIRMAN DYSON asked Representative Whitaker if he was supporting the amendment with the change in the word "things?" REPRESENTATIVE WHITAKER said he didn't know what "things" would be substituted with. REPRESENTATIVE COGHILL suggested "to what is reasonable" but the other is language he took right from the bill itself. CHAIRMAN DYSON suspended the hearing on HB 301 to take up the confirmation hearings. [The minutes for HB 301 continue after the confirmation hearings.] HB 301 - EDUCATION OF EXCEPTIONAL CHILDREN [The beginning of the HB 301 minutes precedes the confirmation hearing of Mr. Hall.] CHAIRMAN DYSON reopened the hearing on House Bill No. 301, "An Act relating to the education of exceptional children; and providing for an effective date." REPRESENTATIVE COGHILL agreed he had struggled with the language "do all things necessary" on page 1, line 13, so he deleted that language and added "take needed action." CHAIRMAN DYSON asked if there was any objection to the amendment to Amendment 4. There being none, the amendment to the amendment was adopted. Number 1262 REPRESENTATIVE COGHILL noted that Dr. Johnson pointed out that on line 13 of Amendment 4, there is an error in the statute number and it should read AS 14.30.180. CHAIRMAN DYSON said to Dr. Johnson that he was amazed when he saw the original bill with the similar language in there that said "do anything necessary." He asked if that is standard in trying to bring state law into compliance with federal laws. DR. JOHNSON answered he didn't know if it is standard, he is new at this game. It was a carryover from the previous statute. It has been in state law for some period of time. CHAIRMAN DYSON said "what I hear you all having said, and maybe the state law said before, you say to our federal overlords we've done everything we know that you want us to do, and if we missed anything, we did that too." Number 1174 DR. FORD-SLACK said it does something else too. She has been using that language as a way to appease the federal government over the last few months when it was questioning the EED's commitment to implementing IDEA with a lack of staff, lack of change in statute and regulations since 1997, and lack of action on the corrective actions from the monitoring report. The EED had been using AS 14.30.180 as sort of a failsafe that the current state statute as it is, if nothing happens, means that the legislators had, in their wisdom, put that the department was still supposed to do what the federal government said to make sure that children with disabilities got the needed protections and programs that they were to have. That is what the EED has been using. REPRESENTATIVE COGHILL said this closes the door for anything the EED wants and even if it is changed and the department has to change, but the legislature and the rest of the state are out of the loop. This at least brings them back into the loop. He asked Dr. Ford-Slack if she had any comment on that. DR. FORD-SLACK said she doesn't have any problem; she was using the language that had been in the statute before to cover her back and the state's back at the time, and it has worked well for about nine months. When the EED was looking at statutory change that appeared to be needed with IDEA, the EED just followed what had been in the previous statute. REPRESENTATIVE BRICE asked why then is HB 301 needed if the department is doing it anyway. Number 1058 DR. FORD-SLACK answered in 1997, when Alaska received its monitoring report ten days before IDEA was reauthorized, it threw the federal government into a dilemma, with all states that had been monitored under the old IDEA in the previous year. Therefore, the EED, with its single staff person, was asked to convene a committee of stakeholders. In October 1997 those stakeholders were to sit with the Office of Special Education Programs representatives and a technical assistance agency to take the corrective actions from the monitoring (of which there were four fairly stringent ones) and roll them into a comprehensive state implementation plan, which is about 16 pages long. That implementation plan not only took care of the corrective actions, but also required the state, under every single section of IDEA, to 1) look at and amend its statute and 2) look at and amend its regulation. She noted that when she originally took this job she thought she was just dealing with the corrective actions of monitoring, but instead she was informed by the Office of Special Education Programs that the state of Alaska had submitted the implementation plan; it had been approved in January 1998; and it was their understanding that that's what the EED was working off of. That is why the EED was to do statutory change. REPRESENTATIVE BRICE referred to line 8 of Amendment 4, "The department may," and said that "may" is permissive. He also said that a less-enlightened administration would not be required to take that action and thus he wondered if that would be a problem. Number 0919 DR. FORD-SLACK said she believed that the federal government's response would probably be that certainly, states have a right to do what they want; education is clearly a state act. The federal government will come and monitor the state, and it will do the things that it believes it needs to do to bring the state into compliance. REPRESENTATIVE BRICE said if Alaska doesn't want to be enlightened, it doesn't have to be. CHAIRMAN DYSON said the federal government might withdraw the funding, and it might be a teachable moment. REPRESENTATIVE KEMPLEN asked to hear from the department. Amendment 4 deletes Section 2, (2) and (3) on page 2, lines 2-9. He asked what impact that would have. DR. JOHNSON said the position of the EED is it does not object to the proposed Amendment 4. The way it was written provided lots of emphasis, and the EED believes that the amendment captures what it is most interested in which is that the department comply with the federal law. REPRESENTATIVE COGHILL pointed out during testimony that AS 14.30.180 is presently in statute but section AS 14.30.182 (1), (2), (3) and (4) is new and is not presently in statute. A roll call vote was taken. Representatives Coghill, Whitaker and Dyson voted in favor of Amendment 4. Representatives Brice and Kemplen voted against it. Representative Green abstained on his vote since he had missed most of the discussion on Amendment 4. Representative Morgan was absent. Therefore, Amendment 4 was adopted by a vote of 3-2. Number 0714 ROBERT BRIGGS, Staff Attorney, Disability Law Center of Alaska, testified via teleconference from Anchorage. He told the committee that he did not have a copy of Amendment 5. CHAIRMAN DYSON read the amendment to him. MR. BRIGGS said Amendment 5 tracks what the Disability Law Center recommended in its April 5 letter. Number 0631 REPRESENTATIVE BRICE made a motion to adopt Amendment 5 which read: In Section 6, page 3, line 22, delete "school district" and add the phrase: "department through a process of random selection" CHAIRMAN DYSON asked Mr. Briggs to explain to the committee why this amendment should be adopted. MR. BRIGGS explained the purpose of Amendment 5 is to ensure that, especially in smaller school districts where there may not be many hearing officers available, the school districts may have the power through the ability to nominate three people to essentially give only one viable candidate, and that candidate may not necessarily be predisposed to hear fairly all the issues in a case. He felt there was agreement with the department on this subject that if there was a random process of selection, just as any case that is filed in a civil court is randomly assigned to a judge, the parties would be assured that there would be a free and open process and less likelihood of attempting to influence who the decision-maker ultimately is. CHAIRMAN DYSON asked Dr. Johnson if the EED has a position on Amendment 5. DR. JOHNSON answered the EED has no objection to Amendment 5. It is an improvement. The Disability Law Center has raised some legitimate issues. If this were to be adopted, he suggested also changing the words "school district" to "department" on page 3, line 24. CHAIRMAN DYSON asked if there was any objection to this amendment to Amendment 5. There being no objection, the amendment to Amendment 5 was adopted. CHAIRMAN DYSON asked if there was any objection to Amendment 5. There being none, Amendment 5 was adopted. Number 0470 REPRESENTATIVE BRICE made a motion to adopt Amendment 6 which reads: Page 3, following line 16: Insert new bill sections to read: "* Sec. 9. AS 14.30.272 is amended to read: Sec. 14.30.272. Procedural safeguards for gifted children. (a) A school district shall inform the parent of a gifted [AN EXCEPTIONAL] child of the right to review the child's educational record, to review evaluation tests and procedures, to refuse to permit evaluation or a change in the child's educational placement, to be informed of the results of evaluation, to obtain an independent evaluation by choosing a person from a list provided by the district or by choosing a person by agreement between the parent and school district, to request an impartial hearing, to appeal a hearing officer's decision, and to give consent or deny access to others to the child's educational record. (b) The department shall establish, by regulation, impartial procedures for a school district to follow for hearings under this section [AS 14.30.193 TO COMPLY WITH REQUIREMENTS NECESSARY TO PARTICIPATE IN FEDERAL GRANT-IN-AID PROGRAMS, INCLUDING 20 U.S.C. 1400 - 1485 (INDIVIDUALS WITH DISABILITIES EDUCATION ACT)]. * Sec. 10. AS 14.30.274 is amended to read: Sec. 14.30.274. Identification of gifted [EXCEPTIONAL] children. Each school district shall establish and implement written procedures to ensure that all gifted [EXCEPTIONAL] children under the age of 22 who reside in the district are identified and located for the purpose of establishing their need for gifted [SPECIAL] education and related services. * Sec. 11. AS 14.30.278 is amended to read: Sec. 14.30.278. Individualized education program for gifted children. (a) The individualized education program for each gifted [EXCEPTIONAL] child must include (1) a statement of the child's present levels of educational performance; (2) a statement of annual goals, including short-term [SHORT TERM] instructional objectives; (3) a statement of the specific gifted [SPECIAL] education and related services to be provided to the child, and the extent to which the child will be able to participate in regular educational programs; (4) the projected dates for initiation of services and the anticipated duration of the services; (5) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether the short-term [SHORT TERM] instructional objectives are being achieved. (b) Each meeting concerning a gifted [AN EXCEPTIONAL] child must include (1) a representative of the school district, other than the child's teacher, who is qualified to provide or supervise the provision of gifted [SPECIAL] education; (2) the child's teacher; (3) at least one of the child's parents; (4) the child, when appropriate; (5) other individuals selected by the parent or school district. (c) Each school district shall develop an individualized education program for every gifted [EXCEPTIONAL] child who receives services or whose parent requests services under this section [AS 14.30.180 - 14.30.350]." Renumber the following bill sections accordingly. Page 3, line 20, following "department.": Insert "The regulations adopted by the department must require separate accounting by the department and each school district of money spent for programs under this section, including procedures to ensure that federal money provided under 20 U.S.C. 1400 - 1487 is not used under this section." Page 4, following line 1: Insert new bill sections to read: "* Sec. 15. AS 14.30.350(3) is amended to read: (3) "consent" means, as applied to parents of gifted children, the parent has been fully informed of all information relevant to the activity or the release of records for which consent is sought and the parent understands and voluntarily agrees to the activity or release of records; * Sec. 16. AS 14.30.350(4) is amended to read: (4) "educational records" means, as the term is applied in gifted education, those files, documents, records, and other material that contain information directly related to a student and are maintained by a school district or a person acting for a school district; the term "educational records" does not include the personnel records of the school district, maintained in the normal course of business, that relate exclusively to a person's capacity as an employee, or other records as designated by the department in regulation; * Sec. 17. AS 14.30.350(7) is amended to read: (7) "individualized education program team" means, as applied in gifted education, a group of people that translates child assessment information regarding a child into a practical plan for specially designed instruction and delivery of services for the child, and includes the following: (A) [A REPRESENTATIVE OF THE SCHOOL DISTRICT, OTHER THAN THE CHILD'S TEACHER, WHO IS QUALIFIED TO PROVIDE OR SUPERVISE THE PROVISION OF SPECIAL EDUCATION; (B)] the child's teacher; (B) [(C)] the child's parent; (C) [(D)] the child, if appropriate; (D) [(E)] other individuals, at the discretion of the child's parent or the school district; * Sec. 18. AS 14.30.350(8) is amended to read: (8) "parent," as applied to the parents of gifted children, includes a guardian and [,] a person acting as a parent of a child; [, AND A SURROGATE PARENT APPOINTED UNDER AS 14.30.325.] * Sec. 19. AS 14.30.350(9) is amended to read: (9) "related services" means, as the term applies to gifted children, [TRANSPORTATION AND DEVELOPMENTAL, CORRECTIVE, AND OTHER] supportive services required to assist [CHILDREN WITH DISABILITIES OR] gifted children to benefit from gifted [SPECIAL] education and includes [BUT IS NOT LIMITED TO SPEECH PATHOLOGY AND AUDIOLOGY,] psychological services, [PHYSICAL AND OCCUPATIONAL THERAPY, RECREATION,] counseling services [INCLUDING REHABILITATION COUNSELING], and medical services for diagnostic or evaluation purposes; the term also includes [SCHOOL HEALTH SERVICES,] school social work services [,] and parent counseling and training; * Sec. 20. AS 14.30.350 is amended by adding a new paragraph to read: (12) "gifted education" means specially designed or accelerated instruction, at no cost to the parent, that meets the unique needs of gifted children." Renumber the following bill sections accordingly. Page 4, line 2: Delete "14.30.272, 14.30.274," Page 4, line 3: Delete "14.30.278," Page 4, lines 3 - 4: Delete "14.30.350(3), 14.30.350(4), 14.30.350(7), 14.30.350(8), 14.30.350(9)," Page 4, following line 4: Insert a new bill section to read: "* Sec. 22. The uncodified law of the State of Alaska is amended by adding a new section to read: TRANSITION. The Department of Education and Early Childhood Development shall adopt regulations required under AS 14.30.315, as repealed and reenacted by sec. 12 of this Act, by January 1, 2001." Renumber the following bill section accordingly. Number 0465 REPRESENTATIVE COGHILL objected. Number 0444 REPRESENTATIVE BRICE said this amendment provides a statutory skeleton for the regulations that the EED has alluded to in providing certain procedural safeguards for GT. It is a little bit of statutory oversight for what is expected to come out of the regulatory process. REPRESENTATIVE COGHILL asked Representative Brice if there is any part of Amendment 6 that is currently embodied in HB 301. REPRESENTATIVE BRICE answered no. That was a question he asked of the drafter. He had Mr. Briggs also go through the amendment to be sure current sections within the CS were not being messed with. It basically provides for those issues on gifted and talented. Number 0322 REPRESENTATIVE COGHILL told Representative Brice that this amendment is exactly why this should be a separate issue. Amendment 6 really embodies a whole different bill. Though he believes it is a worthy debate, it is out of line with this particular issue. REPRESENTATIVE BRICE said actually it is perfectly in line with this piece of legislation given the fact that the department raised the issue. The fact that the EED is in the process of writing the regulations for gifted and talented and needs the statutory authority in which to write those regulations now. If the legislature wants to get rid of GT across the state, it can leave HB 301 as it is, and the statutory authority will be too limited for the department to adopt the regulations it has been talking about. He believes this is an extremely timely amendment, and it is perfectly appropriate. Number 0218 DR. JOHNSON commented obviously, this is a challenging issue. There are no federal dollars associated with gifted and talented; there are no state dollars that currently come to the department but rather to the individual school districts. He indicated that the EED believes it can regulate, to some degree, what is going on in the school districts since they do get money in the form of the 20 percent add-on. With that the school districts need to provide services for all children, including the gifted and talented children. Dr. Johnson noted that Representative Brice has raised the issue of a good, healthy discussion of what the EED wants to do. The EED would certainly support that discussion and wants to be a part of that discussion, but it is the EED's strong opinion, that to the extent possible, the two issues, disabilities and gifted and talented, need to be separated even though historically in Alaska, it has been done differently. REPRESENTATIVE BRICE asked Dr. Johnson the department put AS 14.30.315 into the CS. DR. JOHNSON answered that was a strategy call on the part of the department. It did not want to leave what has been a long-term program recognized under exceptional children out of the legislation. The department felt it would make it difficult to move the bill forward to have the kind of statute necessary for the EED to fully comply with the federal dollars for exceptional children. REPRESENTATIVE BRICE asked Dr. Johnson then what is the department's statutory authority to bring up chapter 53 in the administrative code which was referenced earlier for gifted and talented. DR. JOHNSON said the department believes that AS 14.30.315, where every school district is required to establish a program, gives the department the authority to do that. REPRESENTATIVE BRICE asked Dr. Johnson what is the problem with the language before him. TAPE 00-43, SIDE A Number 0001 DR. JOHNSON said the department believes it is talking about a fiscal note here if the department were required to provide the kind of language that is outlined in Amendment 6. REPRESENTATIVE BRICE said to Dr. Johnson that the department is going to write the regulations, chapter 53 without a fiscal impact, but if the legislature were to give the department the authority to write those regulations, then there is a fiscal impact. He asked for clarification. DR. JOHNSON replied that he wasn't sure if he grasped the question fully. The department will be using department staff to draft regulations to support gifted and talented. For instance, in procedural safeguards there are some heavy monetary issues for the department if it is going to establish hearing officers in the area of gifted and talented. Those hearing officers will need training to do the complaint investigations, the mediation and the due process hearings that are required in a dispute. Those are the monetary issues he was referring to in the department. Number 0125 REPRESENTATIVE BRICE said he is assuming under current AS 14.30.315 the department isn't going to have any due process or procedural efforts. DR. JOHNSON answered yes, in AS 14.30.315, the department does want a review process, but it would be at the local level not the state level. The department would not play a role in it but would require districts to establish those kinds of opportunities for parents who feel that their children are not served well. The money is at the local level. REPRESENTATIVE BRICE said the amendment says "school districts." The EED is not referenced. He just wants to make sure there is statutory authority for the department to be writing the regulations. REPRESENTATIVE BRICE asked Chairman Dyson if Margo Waring could speak to Amendment 6. Number 0268 MARGO WARING came forward to testify. She spoke in support of Amendment 6 and urged the committee to adopt it because it provides exactly what the gifted and talented students have now, nothing more, nothing less. The department has the money and the trained staff to do it now; it has been doing it and can continue to do it. It is an effort, as it was described by Representative Brice, to provide a skeleton for future regulations which might be written. Maybe this time language could be added that would require the EED to produce regulations within some set period of time. More important is children who have special educational needs have been in the same piece of statutes for years. All the federal government is requiring of Alaska is to separate them and that is what the amendment does. MS. WARING noted a member of her group has called the federal Department of Education (DOE) and asked about this; the DOE has said that having parallel statutes is fine; it has supported and approved them in seven other states. There is no need to eliminate what is there now. It just needs to be separated from the proposed new statutes and regulations for special education. MS. WARING urged the committee to support the amendment so the rights that students now have are maintained. Not every school district is stepping up to the bat as much as it needs to to provide education for children with challenging needs. She urged the committee, through this amendment, to put its support behind the idea that school districts and the state have an obligation to teach all of the children. Number 0441 CHAIRMAN DYSON clarified that Amendment 5 was conceptual. If there is another place where the word "department" should be substituted for "school district" that is the intention of the committee. Number 0475 REPRESENTATIVE COGHILL said Amendment 6 is a separate issue and will carry its own fiscal note and needs to go through its own process. He understands it is a parallel problem. The gifted and talented is definitely a debate, but it is not a debate in HB 301. It is a tough separation because it has been done this way for years, but it needs to be debated separately. He urged the committee not to pass the amendment until he and the department have time to peruse it. REPRESENTATIVE BRICE said the department did bring it forward; it was in the original bill and the CS. He just wanted to clarify some things so the EED could have proper direction in their efforts to develop the regulation. There isn't a fiscal note because the EED is going to do it anyway. Number 0566 REPRESENTATIVE WHITAKER asked if Amendment 6 would negate Amendment 3. REPRESENTATIVE COGHILL answered yes, it would negate Amendment 3. REPRESENTATIVE BRICE said actually is does not negate Amendment 3 simply due to the fact there is still a section AS 14.30.315 in statute, and this embellishes on that statute. It is perfectly appropriate. REPRESENTATIVE WHITAKER said he has heard two diametrically opposed answers and asked for further clarification. CHAIRMAN DYSON said he couldn't answer the question succinctly. REPRESENTATIVE BRICE said he believes the answer is very simple; it is what the vote is, and what the will of the committee is. A roll call vote was taken. Representatives Brice and Kemplen voted in favor of adopting Amendment 6. Representatives Morgan, Coghill, Whitaker, Green and Dyson voted against it. Therefore, Amendment 6 failed to be adopted by 2-5. Number 0721 CHAIRMAN DYSON told all the participants that this was one of the better collaborative processes under difficult circumstances he has seen. He suspects that none of interest groups are perfectly happy with this bill. He noted it was a work in progress. He expected some of the committee members to be back on this committee next year, and they will continue to pursue this issue. The details that aren't right in this iteration will be paid attention to and come back to them later. He noted this bill goes on to the Finance Committee so interested parties should watch for when it comes up again there. Number 0845 REPRESENTATIVE COGHILL made a motion to move CSHB 301, version GH2003\G, Ford, 3/27/00, as amended, out of committee with individual recommendations and attached fiscal note. Number 0848 REPRESENTATIVE KEMPLEN objected. He said his concern is that this committee has been quite comfortable with mandating programs for school districts. Not too long ago the committee mandated a security plan for all districts. Why there is now a concern for not mandating services for gifted and talented seems to be inconsistent. His problem with this bill is that it eliminates educational rights for Alaska's best and brightest. For someone who strives toward making a commitment towards excellence, he wants to see Alaska have that same commitment towards excellence in education. This legislation, as amended, is a step backward, and thus he said he cannot support it. A roll call vote was taken. Representatives Coghill, Whitaker, Green, Morgan, Dyson and Brice voted in favor of moving the bill. Representative Kemplen voted against it. Therefore, CSHB 301 (HES) moved from the House Health, Education and Social Services Standing Committee by a vote of 6-1.
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