Legislature(1999 - 2000)

04/12/2000 01:35 PM HES

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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                                                                  
               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                                                              
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                                                              
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                                                              
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                                                              
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                                                              
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                                                              
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                                                              
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                                                              
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                                                              
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                                                              
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                                                              
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,                                                              
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                                                              
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                                                              
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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