03/14/2001 08:03 AM House EDU
| Audio | Topic |
|---|
+ teleconferenced
= bill was previously heard/scheduled
STATE LEGISLATURE
HOUSE SPECIAL COMMITTEE ON EDUCATION
March 14, 2001
8:03 a.m.
MEMBERS PRESENT
Representative Con Bunde, Chair
Representative Brian Porter
Representative Joe Green
Representative Peggy Wilson
Representative Gary Stevens
Representative Reggie Joule
Representative Gretchen Guess
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 71
"An Act relating to the education of children with disabilities
and of gifted children; relating to the Governor's Council on
Disabilities and Special Education; making conforming
amendments; and providing for an effective date."
- HEARD AND HELD
HOUSE BILL NO. 94
"An Act relating to initiatives for quality schools; relating to
pupil competency testing and the issuance of secondary school
diplomas; relating to certain reports regarding academic
performance of schools; and providing for an effective date."
- SCHEDULED BUT NOT HEARD
PREVIOUS ACTION
BILL: HB 71
SHORT TITLE:EDUC. OF DISABLED OR GIFTED CHILDREN
SPONSOR(S): RLS BY REQUEST OF THE GOVERNOR
Jrn-Date Jrn-Page Action
01/17/01 0112 (H) READ THE FIRST TIME -
REFERRALS
01/17/01 0112 (H) EDU, HES, FIN
01/17/01 0112 (H) FN 1: ZERO(EED)
01/17/01 0112 (H) GOVERNOR'S TRANSMITTAL LETTER
01/17/01 0112 (H) REFERRED TO EDU
02/07/01 (H) EDU AT 8:00 AM CAPITOL 106
02/07/01 (H) Heard & Held
02/07/01 (H) MINUTE(EDU)
03/14/01 (H) EDU AT 8:00 AM CAPITOL 106
WITNESS REGISTER
BRUCE JOHNSON, Deputy Commission of Education
Office of the Commissioners
Department of Education & Early Development
801 West 10th Street
Juneau, Alaska 99501
POSITION STATEMENT: Testified on HB 71.
GREGORY MALONEY, State Director
of Special Education
Department of Education & Early Development
801 West 10th Street
Juneau, Alaska 99501
POSITION STATEMENT: Answered questions on HB 71.
PHILIP REEVES, Assistant Attorney General
Human Services Section
Civil Division (Juneau)
Department of Law
PO BOX 110300
Juneau, Alaska 99811
POSITION STATEMENT: Answered questions on HB 71.
ACTION NARRATIVE
TAPE 01-14, SIDE A
Number 0001
CHAIR CON BUNDE called the House Special Committee on Education
meeting to order at 8:03 p.m. Members present at the call to
order were Representatives Bunde, Porter, Wilson, Joule, and
Guess. Representatives Green and Stevens arrived as the meeting
was in progress.
HB 71-EDUC. OF DISABLED OR GIFTED CHILDREN
CHAIR BUNDE announced the committee would hear testimony on
HOUSE BILL NO. 71, "An Act relating to the education of children
with disabilities and of gifted children; relating to the
Governor's Council on Disabilities and Special Education; making
conforming amendments; and providing for an effective date."
Number 0156
BRUCE JOHNSON, Deputy Commission of Education, Office of the
Commissioners, Department of Education & Early Development
(EED), came forth and stated that HB 71 will bring [the EED]
into compliance with the federal government requirements for
special education and will allow [the EED] to continue to
receive the resources available at the federal level. He
mentioned that [the EED] does not portray that its money is
currently in jeopardy with the federal government; however, [the
EED] is under corrective action. He remarked that last year
there was $11 million or $12 million in federal dollars and now
there is about $19 million. He added that most of that money is
passed on to the individual districts to offset their costs,
particularly with students who have severe disabilities. He
added that [the EED] has also attempted to differentiate between
children with disabilities and children who are identified as
gifted and talented.
MR. JOHNSON mentioned that [the EED] had felt there were no
resources for it to do much with the exceptional child who is
identified as gifted and talented. Therefore, it was decided
that since the money was going to the districts through the
block grant program, [the districts] should have full control
with what happens with the services they elect to provide to
gifted and talented children. He added that [the EED] had heard
from a strong constituency that wanted the state oversight;
therefore, there is a modest fiscal note attached to the bill to
provide this and other services in the area of GT (gifted and
talented).
Number 0445
CHAIR BUNDE asked if [the EED] would have a negative reaction if
"30 calendar days" was changed to "30 school days" under IEPs
(individual education programs).
GREGORY MALONEY, State Director of Special Education, Department
of Education & Early Development, answered that in federal law
it reads "30 days", which is calendar days. He added that
"school days" could be restrictive.
CHAIR BUNDE asked if [it would have to be "30 days"] in order to
be in federal compliance.
MR. MALONEY remarked that [the EED] cannot restrict the federal
law.
CHAIR BUNDE stated that [the Anchorage School District] had
concerns about due process, the one-tiered hearing process, and
the additional costs.
Number 0535
MR. MALONEY replied that what is in place currently is a two-
tiered hearing process. If a parent has a due process issue, he
or she files the request with the district, which assigns a
hearing officer. Currently, appeals come to [the EED]. [The
EED] is proposing a one-tiered system, in which it would receive
the requests for the due process hearings and assign the hearing
officer through a hearing officer selection process. He stated
that the cost concerns that the [Anchorage School District] has
is in regard to whether the hearing officer lives outside of the
Anchorage area. He noted that the majority of the hearing
officers live within the Anchorage area; therefore, [the EED]
does not believe that would be a strong consideration in terms
of the cost. The legal fees that would be charged would be the
same, presumably. Therefore, the additional costs would be for
transportation if the [hearing officer] was not living in
Anchorage.
MR. MALONEY stated that it is not easy for [the EED] to track
the due process issues when the districts administrate the
hearings. He clarified that [the proposed system] will make the
process cleaner and allow [the EED] to track the issues in order
to address them through trainings and professional development.
Number 0668
REPRESENTATIVE WILSON asked whether the schools could start the
due process so that they don't have to wait for any action from
[the EED].
MR. MALONEY answered that they do under the current system.
REPRESENTATIVE WILSON asked if [the EED] wants to change that.
MR. MALONEY replied that the district would no longer assign the
hearing officer; [the EED] would. Therefore, the districts
would not receive the initial requests from the parents.
REPRESENTATIVE WILSON asked if that occurs when [the parents]
have gone through the due process and something hasn't worked
out at the local level.
MR. MALONEY answered that under the current system that would be
correct. He clarified that [the EED] would be involved if the
district or the parent disagreed with the decision regarding the
due process hearing. Under the proposed system, the [EED] would
initially assign the hearing officer.
Number 0766
REPRESENTATIVE WILSON asked whether, under this new program, the
parents will realize that they don't initially go to the local
school level for [requests].
MR. MALONEY responded that if the districts receive [the
requests], they will forward them to the [the EED]. He added
that [the EED] will provide trainings for the parents and
notification will be in the procedural safeguard notice, which
parents receive.
REPRESENTATIVE WILSON stated that she is concerned with the
limit of 30 days.
MR. MALONEY responded that the 30 days refers to the IEP plans.
He clarified that the due process has a separate timeline.
REPRESENTATIVE WILSON asked if this is essentially taking away
some local control and giving it to the [EED].
MR. MALONEY explained that in terms of the due process hearing,
it would be the [EED] rather than the local district assigning
the hearing officer. He noted that the first significant
procedural safeguard is a process called mediation. He
explained that anytime [parents and school districts] have
disagreements over a student's educational program, a neutral,
trained mediator is brought in and the issues are resolved
through communication. He stated that the second procedural
safeguard has to do with a complaint investigation. If there is
a disagreement, an administrative complaint can be filed under
[the EED] and a trained complaint investigator is assigned to
the case who collects the information. A report is then written
that may contain corrective actions if necessary.
Number 0954
MR. MALONEY explained that there are three formal processes
provided to parents. Due process is the most significant one in
that it tends to be the most "legalistic" and most expensive.
He added that [the EED] encourages mediation as well as for
districts and parents to have communication prior to this point.
He noted that through the IEP process there should be
identification of issues that are not working well. He remarked
that [the EED] would be concerned if the due process hearing is
seen as the communication mechanism.
REPRESENTATIVE WILSON asked where in the process the school and
the parents try to work things out first.
MR. MALONEY responded that the best-case scenario would be in
the IEP meeting, where differences are being identified. He
added that there are times when this doesn't happen, and that is
where these three processes are provided under federal law -
mediation, complaint investigation, and due process. He added
that it is up to the parent to choose which one to pursue.
REPRESENTATIVE WILSON asked who would be picking up the bill if
the [EED] has to be contacted for a due process [hearing].
MR. MALONEY replied that the districts would still be
responsible for paying for the due process hearings. He
reiterated that one of the reasons [for the new process] is for
[the EED] to know which due process hearings are occurring and
to track the issues regarding students with disabilities. He
noted that this is also to encourage districts and parents to
communicate prior to the point at which a due process hearing is
being requested. He added that anytime a due process hearing is
requested, the hearing officer, by law, has to notify the parent
of the availability of mediation.
Number 1163
REPRESENTATIVE WILSON asked whether [the EED] could mandate the
schools to inform the department every time a due process
hearing occurs, since it seems the only concern is not finding
out about them. She also asked if [the EED] is feeling that
[the process] is not being done properly in some areas.
MR. MALONEY replied that there are some concerns with how the
process is handled. He stated, in terms of the local control
issue, that he thinks [the EED] is in line with what other
states have done. It would be a more efficient process. He
added that the costly part would come from [modifying the
already implemented procedures].
Number 1238
REPRESENTATIVE GREEN asked if it is possible to get somebody
outside the area of interest since the random selection [for the
hearing officer] is from a statewide pool.
MR. MALONEY answered that the pool is primarily from the
Anchorage area. He noted that [the EED] has tried to have
regional representation. Under this system it would be a random
process and each participant would have the opportunity to
randomly "bump" one person.
REPRESENTATIVE GREEN remarked that he is concerned that there
will be increased cost if a complaint occurs out of [a hearing
officer's] district.
MR. MALONEY replied that there could potentially be additional
costs. He noted that districts are currently paying for hearing
officers. He explained that in the current system the district
will frequently provide the names of three [hearing officers].
If any are disagreed upon, then the fourth name is the one
assigned.
REPRESENTATIVE GREEN remarked that it seems [the EED] is working
toward an inefficient central control.
Number 1464
REPRESENTATIVE JOULE asked where hearing officers for the rural
areas are from.
MR. MALONEY answered that there is a pool of trained hearing
officers who are primarily from the Anchorage area.
REPRESENTATIVE JOULE asked whether there would be a cost anyway
for the rural districts.
MR. MALONEY replied that it depends on the nature of the
hearing. He explained that hearings could be conducted in a
number of ways for costs to be kept at a minimum. He stated
that the hearing officers will be from the same pool [as the
current pool], and the only change would be the way in which
they are assigned.
REPRESENTATIVE JOULE asked if there is a perception from the
parents, under the current way, that there might be a bias [with
the hearing officers].
MR. MALONEY answered that perceptions of parents could certainly
be that. He explained that this is why parents have the
opportunity to exclude certain hearing officers. He said he
thinks this will actually be a cost savings because the [EED]
would be bearing some of the administrative costs for assigning
those hearing officers. He added that in creating this
legislation [the EED] consulted with the "parent in training
information center," the governor's council on special education
and developmental disabilities, and the Disability Law Center
[of Alaska], none of which expressed significant concern about
this particular piece of legislation.
Number 1666
REPRESENTATIVE PORTER stated that the debate is over a dispute
between parents and a school district, both of whom should be
advancing toward resolution on equal levels. He remarked that
if the parents, rather than the school district, [pick the
hearing officers], the cost will virtually be the same.
REPRESENTATIVE GUESS asked, if there's one pool of hearing
officers, whether the district or the state is going to choose
it.
MR. MALONEY answered yes.
REPRESENTATIVE GUESS asked if there is somebody the district
would choose that is not in the state's pool.
MR. MALONEY answered no, and said the state is currently
responsible for qualifying the hearing officers.
REPRESENTATIVE GUESS asked if the state would conduct a random
process instead of the process that occurs at the district
level, which may or may not be random.
MR. MALONEY replied that districts would provide [three] names
from a pool of names. The parents can choose to accept any of
the names; if not, then the fourth name would be the [hearing
officer] selected.
Number 1779
REPRESENTATIVE GUESS asked how many hearings get appealed now.
MR. MALONEY answered that this information has not been tracked
very well because [the EED] doesn't really know the amount of
hearings that are occurring. This year, so far, there have not
been any hearings that have been appealed. He stated that the
option of the court is always available. He added that the
court may direct a person to exhaust that appeal process, and
due process can be settled prior to the resolution. This allows
[the EED] to better handle that information.
Number 1866
CHAIR BUNDE remarked that it seems as if the argument [that the
EED] wants this [legislation] for better tracking is a pretty
thin argument. He stated that [the EED] could simply request
that information through regulation. He said he would feel more
comfortable with [requests] immediately going to the state if
[the EED] required mediation first. He asked why this should go
to the supreme court before the district court.
MR. MALONEY answered that the reason [mediation] is not required
is because it is a voluntary process by design. Under the due
process procedures it is required that parents are made aware of
[the option of] mediation by the hearing officer.
CHAIR BUNDE asked if the courts might require mediation.
MR. MALONEY answered that the court could require [the parents]
to enter into mediation, but [the EED] cannot.
Number 1971
REPRESENTATIVE PORTER remarked, "If I were a school district, I
would be inclined to try to take care of all the local options I
had at my avail before I took this step."
REPRESENTATIVE GREEN commented that there haven't been any
requests to advance because they have been handled under the
current system. He asked if this is the type of situation where
"if the system ain't broke, fix it till it is."
MR. MALONEY answered that frequently because of the costs of due
process hearings there have been settlements rather than
completions of due process hearings; therefore, [the EED] does
not necessarily get information on the issues that would have
been brought up during those hearings. He clarified that [the
EED] is aware of complaint investigations that come directly to
the state. [The EED] assigns the complaint investigator and
does the report. With mediation, [the EED] gets progress
reports from the mediation system about what the outcomes were.
Number 2059
REPRESENTATIVE GUESS asked if some of the benefits for having
this at the state level are to see trends in the state of where
the law isn't being applied the way is should be, to see if
there is a lack of training, or to see whether there is a
problem in a district with implementing IDEA (Individuals with
Disabilities Education Act).
MR. MALONEY answered that he would agree. The primary purpose
of the due process hearings is to make sure that the individual
student program is being implemented appropriately. [The EED]
is required to report to the federal government any due process
issues, complaint issues, and mediation issues that come up. He
added that not only is it a compliance issue, but it is a
training issue and a resource issue. He explained that [the
EED] is going to use the resources available to address the
implementation as to whether there are regional, district, or
statewide trends. He mentioned that [the EED] monitors school
districts by going into a district and looking at how special
education requirements are implemented.
Number 2177
REPRESENTATIVE WILSON stated that she wants the whole process to
flow ,and if the option of due process is the ultimate process
that takes place, [everyone] should know about it. She stated
that she is concerned about the cost in the long run and asked
if there are people trained in areas "out in the fringes," or if
they would have to be flown in.
MR. MALONEY stated that the pool of hearing officers would be
the same under either system and there wouldn't be a big
difference in cost. [The EED] does ongoing recruiting in order
to have as big and as qualified a pool as possible. He said the
difference in costs would primarily be the administrative costs
associated with the school district for doing the hearing, since
the staff time would be transferred to [the EED]. The district
would be involved in the hearings solely as a participant rather
than as a participant and an administrator.
Number 2304
CHAIR BUNDE asked how many due process [hearings] occurred last
year.
MR. MALONEY responded that he is not aware of any that came in
last year through the [EED] as an appeal process.
CHAIR BUNDE asked whether, as a result of the lack of reporting,
Mr. Maloney was not aware of any that had gone through at the
local level.
MR. MALONEY answered that [the EED] has a "spotted" record, at
best in terms of what happens at the local level regarding due
process. He stated that as of now, since the district pays for
the hearing officer and assigns the hearing officer, it is
difficult for [the EED] to track because there is no upfront
information regarding whether or not the hearing has been filed
for in the first place
TAPE 01-14, SIDE B
Number 2343
REPRESENTATIVE STEVENS asked for a rough overview of how much is
spent and received on special education. He also asked how much
the state and the local school districts are involved in the
cost of special education or whether that is covered by federal
programs.
MR. JOHNSON replied that the 20-percent block grant added to the
foundation program is to cover extra costs associated with the
children with disabilities and gifted and talented students;
bilingual and vocational education are added to that. He
clarified that those resources are earmarked for those students
even though they can be spent in any area, since there isn't
categorical funding. He noted that the federal dollars, which
are anticipated for next year in excess of $19 million, are to
help with the extraordinary costs, particularly those associated
with some of the processes that are mandated by the federal
government as well as those associated with children with severe
disabilities who may require full-time nurses.
MR. JOHNSON remarked that depending on the district, some feel
the money has adequately met the needs of children with
disabilities as well as those who are gifted and talented. He
stated that he thinks other districts are experiencing "erosion"
and that the costs continue to go up, particularly with what
[the EED] terms as intensive students. He explained that in a
formula, there is about $20,000 for each of the identified
intensive children beyond any other funding. He remarked that
[the EED] is hearing that costs are escalating and more students
are being identified, particularly in the intensive category;
therefore, there are costs to the state and to the local school
districts. He added that [the EED] often gets into challenges
with families where a district attempts to narrow its costs and
believes it has a program that meets the students' needs, but
where the parents feel the district is just being a cheapskate
and that students may need a program outside the local community
or a very specific program.
MR. JOHNSON stated that at the due process level, a district is
inclined to want to settle to ensure that the student is served
as well as to protect the district's resources.
Number 2183
REPRESENTATIVE STEVENS said he is not sure that diverting to the
parents is always the best case because a school district needs
to be advised for all the kids. He remarked that he doesn't see
anything in the bill concerning the districts wanting more
oversight from the [EED], and that he is concerned with what the
[EED] is doing in terms of gifted and talented programs,
staffing, as well as dollars diverted to the [EED] and not the
school districts.
MR. JOHNSON answered that [the EED] has heard from the GT
(gifted and talented) constituency that they would like [the
EED] to be involved in receiving the plan of service for gifted
and talented children, which comes to [the EED] on an annual
basis. He noted that right now [the EED] receives this but
there is no staff to review it or to offer suggestions or
technical assistance to be sure that it meets all the
requirements of the current state statute. He said he thinks
[the GET constituents] are asking that [the EED] get more
involved in that process. He mentioned that [the GET
constituents] would like [the EED] to visit districts and
monitor the programs. He added that [the constituents] also
want their rights for due process hearings and mediation to be
available. He remarked that [the EED] does not have the dollars
to provide mediation from the state because [the EED] does not
receive it from the federal government and there are no local
dollars to support GT programs in the budget. He stated that
[the EED] is able to use the due process training opportunity to
train hearing officers for GT disputes as well. He remarked
that the threat of being able to participate in the [GT due
process hearing] makes a big difference in parents' capacity to
advocate for the needs of their children.
Number 2040
CHAIR BUNDE, referring to the fiscal note, stated that $103,000
is not relatively insignificant to the budget plans.
REPRESENTATIVE STEVENS asked what staffing would be necessary on
the district level to [fiscally] provide the gifted and talented
programs and the IEPs due process hearings.
MR. JOHNSON responded that [the EED] is looking at very modest
staffing to provide that kind of service. In order to monitor
and avoid excess costs and additional state employees, [the EED]
would contract with a group of knowledgeable, trained people
that would do the monitoring review.
REPRESENTATIVE WILSON asked if there is a way for a parent to go
through a due process [procedure] if his or her child was not
excessively gifted, or did not have any handicaps.
MR. JOHNSON answered that there is not a system set up for the
[EED] to accomplish that. He remarked that [the EED] is often
requested to settle local disputes of that nature, but if there
is no direct authority, [the parents] are directed back to their
local school districts.
REPRESENTATIVE WILSON asked whether there is a process for
[those parents] where [the EED] is not involved.
MR. JOHNSON stated that he couldn't speak for every district.
He remarked that every district that he has worked for has had a
public complaint process in which [the parents] follow the chain
of command with their complaint; if they are not satisfied, they
can ultimately request something before the local school board.
Number 1892
REPRESENTATIVE WILSON asked if this process is in place already.
MR. JOHNSON answered yes.
REPRESENTATIVE WILSON asked if a [parent] of a "regular" student
as well as a parent of a gifted student could go through several
processes in order to be heard and satisfied without this bill
in place.
MR. JOHNSON replied that last year, specific to GT, [the EED]
suggested that there be processes at the local level. He stated
that the feedback was that [the parents] felt it wasn't
satisfactory, and they didn't want to lose the rights given to
them over the last 30 years by being included in this area of
exceptional children.
REPRESENTATIVE WILSON asked if something new is put on this bill
whether there would be a huge jump in cost [because parents
would want to take advantage of it].
MR. JOHNSON remarked that [parents] currently have this right
under the law. Gifted and talented students and children with
disabilities are lumped under a single law called "exceptional
children." The only thing that [the EED] has done is split the
"exceptional child" title into two divisions: one for children
with disabilities, the other for children identified as gifted
and talented. [The EED] has tried to maintain all the rights
that those families currently have.
CHAIR BUNDE explained that the $100,000 fiscal note would allow
gifted and talented students and their parents to continue to do
what they do right now.
REPRESENTATIVE WILSON asked why the bill is necessary.
REPRESENTATIVE GUESS responded that [it is necessary] because
the federal government changed the law so that IDEA only refers
to children with disabilities and no longer includes gifted and
talented [children].
MR. JOHNSON stated that the federal government never provided
any funds for GT. [The EED] tended to commingle the funds, but
in an audit was told it could no longer do that. He remarked
that the major reason for this law is to come into compliance
with new federal requirements regarding children with
disabilities.
CHAIR BUNDE summarized that he thinks Alaska, and probably other
states, chose the category of exceptional children in order to
include special education and gifted and talented students. The
federal government says that the money cannot be used for gifted
and talented [programs] but only for the more traditional
special education services. He remarked that this bill would
allow the parents of gifted and talented children to still have
the appeal process available to them as they had in the past.
REPRESENTATIVE WILSON asked if all children have [the appeal
process available].
CHAIR BUNDE responded that [GET] has the same procedure that
special education has, which is more than the average child has.
He asked Mr. Johnson to give his views on the description of
"least restrictive".
Number 1682
MR. JOHNSON stated that [the EED] believes the "least
restrictive environment" clause in the proposed legislation
doesn't minimize the opportunity for a district to serve those
kids outside of their normal program. In a number of programs
in the state, young people spend their entire day in a single
center, where they don't necessarily interact with other
children on a regular basis, but are served individually. He
stated that [the EED] believes the IEP teams have determined,
with parent involvement, that this is an appropriate educational
environment; therefore, it is not overly restrictive.
CHAIR BUNDE stated that he has heard from parents of gifted and
talented children that they are concerned that this legislation
would preclude special classes for gifted students. He
explained that this interpretation of "least restrictive" will
still allow the current practice of having GET classes and
programs.
MR. JOHNSON remarked that this is [the EED's] interpretation.
REPRESENTATIVE GUESS stated that the change right now would say
that the determination of whether or not a child should be sent
to an educational program or a residential school outside the
child's community or school district would reside with the
school district and not the department. She stated that she is
concerned that some districts may not have the capacity in their
administrations to make those decisions. She asked why this was
changed.
Number 1555
MR. MALONEY explained that the change was made to reflect that
the IEP team, rather than [the EED], makes that determination.
Any placement decision that has to do with the child, whether
the student would be in a regular classroom or in the most
restrictive setting such as an out-of-state placement, would be
an IEP team decision. He clarified, in terms of whether the
[EED] is involved, that they have been working on a more global
level with districts and other agencies involved, particularly
with kids who are in state custody, to help districts to address
those needs appropriately.
REPRESENTATIVE GUESS asked if that has the same appeal process
as all the others.
MR. MALONEY replied certainly, that anything covered under IDEA
97 always has the same official complaint processes.
Number 1496
REPRESENTATIVE WILSON asked if [the EED, regarding this special
due process procedure] wants the gifted to be pushed under the
same "umbrella" as the special education students.
MR. MALONEY answered that the due process procedure under the
existing law is the same for gifted and talented, kids with
disabilities, and special education [students]. He stated that
the change to special education in the double-tiered system
would be made to the gifted procedures. Therefore, the gifted
would also become a single-tiered procedure. He explained that
the difference with gifted due-process-hearing procedures, as
opposed to the special education due-process-hearing procedures,
is that mediation is not offered because it is a federally
funded IDEA 97 special education process. Instead of the
requirement that mediation be offered during a gifted due
process hearing, there is a pre-hearing conference at which the
parties would get together to discuss their needs and determine
whether or not a settlement could be reached or whether the
hearing needs to go forward. He remarked that one of the
purposes of the bill is to clarify that some pieces do not apply
to GET that do to special education.
REPRESENTATIVE WILSON remarked that there are several
classifications of children now: gifted, bilingual, vocational
education, and special education. She stated that the gifted
are being singled out. She asked what is being done for the
bilingual and the vocational education.
MR. MALONEY responded that [the EED] is not [including them
under the same "umbrella"].
REPRESENTATIVE WILSON asked if there is the possibility that one
of these groups [bilingual or vocational education] would ask
why some groups are singled out while these are not.
MR. JOHNSON responded that he thinks that one of things that
distinguishes GET and children with disabilities from the other
two block-funding categories is a 30-year history of including
them under this category of exceptional children. He stated
that [the EED] is trying to maintain that history. He remarked
that there are no specific federal rights for bilingual and
vocational education students to be included; that would be a
local decision. He added that there could be a separate set of
statutes, outside of t hose for exceptional children, for GET
students, but the advocacy groups do not want this.
REPRESENTATIVE WILSON again asked, if nothing different is being
done, why there needs to be legislation.
MR. JOHNSON responded that [the EED] is bringing its statutes
into compliance with the new federal requirements for children
with disabilities. In further response, he said [the EED is
under corrective action.
CHAIR BUNDE asked if it is fair to say that [the EED] could be
brought under compliance using all the current funding for the
initial special education and by not putting GT in its category
for appeals.
MR. JOHNSON answered that that would be correct.
Number 1159
REPRESENTATIVE WILSON said it seems that many things in the bill
do not have to be done in order to comply with federal
regulations.
MR. JOHNSON replied that right now there is a set of statutes
that require essentially the same oversight and program
development that are in this bill. He stated that this has been
happening for 30 years and that constituencies would like [the
EED] to continue to do that. He added that this body could deal
with GT in a very different way since there is no federal
requirement for GT.
REPRESENTATIVE WILSON asked if any funds would be lost.
MR. JOHNSON stated no, there is no GT federal funding.
REPRESENTATIVE WILSON asked if there would be a change in how
everybody [in GT] is treated in the school systems.
MR. JOHNSON answered no.
CHAIR BUNDE remarked that this would perpetuate the status quo
and that the legislature could chose to eliminate the special
treatment of GET students.
Number 1047
REPRESENTATIVE STEVENS asked if there is going to be any impact
from the [high school] exit exam on special education. He also
asked how a student gets into special education [late in his or
her school career].
MR. JOHNSON answered that under the current law regarding pupil
competency, special education students, other than the most
severely disabled children who will not be on a diploma route,
would have to meet the requirements of the exit exam. Other
than enhancing the capacity for learning, there is no advantage
to being identified as a special education student. He stated
that some of the current proposals would treat special education
students differently in relationship to the exit exam and allow
more IEP determination on what that particular student would
need to qualify. He remarked that there has been the concern
that there are increased advantages to being identified as a
child with a disability and that there would be a surge in the
direction of identified such students.
REPRESENTATIVE GUESS asked, on the federal level, whether ASD
[Anchorage School District] had discussed tackling the issue of
discipline for students with disabilities.
MR. MALONEY answered that the federal regulations regarding the
special education IDEA 97 do have significant pieces on
disciplinary actions addressing the needs of kids with
disabilities. He stated that [the EED] has incorporated those
regulations into its existing regulations. [The EED's] strategy
is to identify the federal statute guiding this bill, indicate
that [the EED] is going to implement the procedures contained in
the federal regulations, and address that through regulation and
training.
Number 0812
CHAIR BUNDE remarked that there were a number of questions
brought up at the previous meeting from committee members and
those who testified. He stated that [the EED], in response,
felt the bill had been crafted with the client groups in mind
and chose not to make any changes. He said there are two issues
before [the committee]. One is whether the committee should try
to solve the problem or stall awhile since there is not much
pressure and there is no money loss. The other issue is whether
the committee would like to make adjustments in the form of a CS
(committee substitute).
Number 0724
REPRESENTATIVE PORTER made a motion to adopt a conceptual
amendment that would strike the word "fully" on page 12, line
23, because he stated that parents will never be fully informed.
REPRESENTATIVE GUESS asked if there could be some language to
put some onus on the school district to make an attempt to
inform the parents.
REPRESENTATIVE PORTER stated that he would accept "reasonable
attempt to inform."
REPRESENTATIVE JOULE asked if notification by letter would be a
reasonable attempt to inform.
REPRESENTATIVE STEVENS remarked that this has to do with the due
process hearing; therefore, it would be in a face-to-face
setting.
MR. MALONEY stated that this is for any action for which the
parent is signing consent. He explained that the language is
there to make sure that the parent has [given] full, informed
consent. He clarified that there is reasonableness in the
standard in trying to do that.
CHAIR BUNDE stated that there will need to be some clarity as to
whether this is federal language or not. He announced that the
proposed amendment was [tabled].
Number 0492
REPRESENTATIVE PORTER asked what the language "creative talent"
means on page 17, line 16, when defining gifted children.
MR. JOHNSON responded that the fine arts and creative talents
are in existing law and so that's been carried forward. He
added that there are districts that are providing services to
identified students with those particular talents, not just
academic talents. He clarified that it would be the
extraordinary talents that the districts would be looking
toward.
CHAIR BUNDE asked if this would be a local option to define
"creative".
MR. JOHNSON answered that it would.
REPRESENTATIVE GUESS remarked that she is confused about what is
[federally required] and what is not in the bill. She asked if
it would be possible to have that determination.
MR. JOHNSON responded that [the EED] has prepared a side-by-side
analysis to highlight what is a federal [requirement] and what
is flexible at the state level. He added that all of GT is
under local state control.
CHAIR BUNDE clarified that if a section of the bill refers to
gifted and talented, it is a local option, and if it refers to
special education, it is a federal requirement.
Number 0179
REPRESENTATIVE PORTER stated that he assumes "informed consent"
applies to children with disabilities as well as to gifted and
talented. He asked: If it is federal language, which would be
interpreted to be a reasonable standard, why can't it say
["reasonable"] instead of leaving the ambiguous, easily
litigated "fully"?
MR. JOHNSON responded that the definition under the federal law
states: The parent has been fully informed of all information
relevant to the activity to which consent is sought in his or
her native language or other mode of communication.
REPRESENTATIVE PORTER asked whether, if the committee changes
one word - "reasonable" - [the bill] would be in violation.
MR. JOHNSON answered that he thinks there is some discretion
along the same notion of reasonableness.
Number 0074
PHILIP REEVES, Assistant Attorney General, Human Services
Section, Civil Division (Juneau), Department of Law, stated that
everything that is in federal statutes and regulations is still
going to apply to whatever is put in the state statute and
regulations. For example, parents have a concern with how the
Anchorage School District is providing education to his or her
child, or what type of consent they've been given, they can cite
to the state law or the federal law, and the court will grant
whatever gives the person the greatest protection. He stated
that there doesn't need to be identical language; in this case,
he said, there isn't the risk of inconsistent provisions because
it would default to the federal provision, which clearly
provides the term "fully" within it and has a "reasonableness"
component. He commented that one of the suggestions is that
this should be done in all cases not cited to the federal law;
however, he said, his concern is that if there is not identical
language sooner or later there will be inconsistent provisions.
REPRESENTATIVE PORTER asked if a dispute in this area that ends
up in state court would be a dispute over the state law.
TAPE 01-15, SIDE A
MR. REEVES answered that IDEA gives the option to the parent to
bring an action in either state or federal court. The federal
law would be applied in the state court, and the federal law
would be looked to for interpretation to the state law.
REPRESENTATIVE PORTER asked why the committee is passing a state
law, then.
MR. REEVES stated that the federal government has mandated
states to implement a state program. Rather than trying to
restate this, the law is just citing to it. There are some
areas where there are flexibilities to the state, where the
state has provided more protections than the federal law, or
where there's flexibility in some areas to have different
procedures. He remarked that most areas in the state law deal
with those type of things where the state has some option as to
how it wants to run a program. In the areas where the state
doesn't have an option, it has been "compacted" in this bill to
cite to the federal law.
Number 0243
CHAIR BUNDE asked if it would be accurate to say that this is
being done only to maintain some advantage for the gifted and
talented.
MR. REEVES replied that there are two sections: a section for
children with disabilities and a section for gifted children.
He stated that almost all of the proposed changes in the
children-with-disabilities section are tweaking the current laws
to get into compliance with the new language of IDEA 97. In the
gifted section, the intent has been to carry over the current
program. Under the current law there isn't a gifted and
disabilities section; it's just for exceptional children. He
stated that some of the problems exist because as the federal
law provides more protections or more complex procedures, the
current law applies those all to the gifted children. He stated
that even parents of gifted children don't consider that to be
reasonable. For example, they don't care for least restrictive
environment, which is a fundamental principle of federal law for
children with disabilities. He explained that that is part of
the reason for separating these out, to continue to comply with
the federal requirements for children with disabilities but to
not have to necessarily apply requirements that are not very
reasonable to the gifted program.
REPRESENTATIVE PORTER stated that he doesn't understand why [the
committee] is doing anything if a case in state court would
still defer to the federal language.
Number 0468
Chair BUNDE remarked that [without the legislation], the GET
wouldn't be continued. He asked if there are court precedents
that cover reasonableness under "fully informed."
MR. REEVES answered that much of the case law is scattered
across the country; some is in state court, some is in federal
court, and some is under the due process proceedings. All of
those types of cases are brought forward in a due process
hearing or in court to be suggested as precedent that should be
followed. He remarked that he is not aware that there is a
Ninth Circuit [Court of Appeals] case that deals with that.
REPRESENTATIVE GREEN asked if [the committee] is creating a
problem by having [informed consent] reiterated in statute
within Alaska.
MR. REEVES responded yes. He remarked that removing "fully"
from the definition will not cause a great problem, but he
doesn't believe it is going to change how it is interpreted. If
federal law were to change, then the state wouldn't be tied to
language in that way.
REPRESENTATIVE GUESS asked what the timeline is to comfortably
deal with the issues [the committee] may have.
MR. JOHNSON stated that he thinks it is a year-by-year call as
to whether or not [the EED] is in jeopardy of not receiving the
funds.
Number 0619
CHAIR BUNDE remarked that there isn't a sense of urgency at this
point that would require [the committee] to do something that it
is not entirely comfortable with.
REPRESENTATIVE WILSON stated that she doesn't know what school
districts, across the state, think about all of this.
REPRESENTATIVE PORTER remarked that he has a bias about the
gifted and talented program in general because it seems there's
a lot of things preferential to a group that seems to need the
least amount of individual help.
REPRESENTATIVE GUESS shared that her neighbor who is nine or ten
years old was in the elementary school in her district,
Anchorage. He had a 130 IQ and sat in second grade bored with
teachers who said they weren't trained to teach him; therefore,
he turned off at school and stopped doing work. She stated that
his parents were distraught and couldn't get a response from the
school district. She remarked that [the state] does have an
obligation to these children.
[HB 71 was held over.]
ADJOURNMENT
There being no further business before the committee, the House
Special Committee on Education meeting was adjourned at 9:56
a.m.
| Document Name | Date/Time | Subjects |
|---|