Legislature(1999 - 2000)
04/12/2000 01:35 PM HES
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
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 AS 14.30.315 is repealed and reenacted to read: Sec. 14.30.315.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.