CDCAN Advocacy Without Borders :: One Community

Assembly Committee Analysis

This bill requires a local education agency (LEA) to continue providing early intervention services to a child with exceptional needs between the ages of three and five years in a preschool program (if the child is no longer eligible for services under federal law), pending the resolution of a due process hearing, as specified.

Specifically, this bill:

1. Specifies that this requirement will only be implemented to the extent that the Legislature appropriates federal American Recovery and Reinvestment Act of 2009 (ARRA) funds or other funds intended to provide higher levels of federal special education funding for this purpose.
2. Deletes existing statute that prohibits the requirement for LEAs to provide early intervention services to a child with exceptional needs between the ages of three and five years, as specified.
   

   Fiscal Effect

   GF/98 costs, likely between $360,000 and $720,000, to require LEAs to continue providing early intervention services to a pupil with special needs between the ages of three and five, as specified.

   Between July 2005 and April 2007, the State Department of Education (SDE) reports there were 225 due process hearings conducted by the Office of Administrative Law. Of this number, approximately 12 cases involved children who turned three years of age during this process. SDE reports that there are approximately 34,450 children who turned three and receive services under IDEA Part C.

   1. Background -- The federal Individuals with Disabilities Education Act (IDEA) delineates rights and services for persons with disabilities. A portion of IDEA requires infants and toddlers with disabilities to receive early intervention services form birth through age three, as specified in their Individualized Family Services Plan (IFSP) (now known as IDEA
   2. These services include health services, family counseling, occupational therapy, psychological services, and speech/language services. Services are provided through the state's 21 developmental disabilities regional centers, administered by the Department of Developmental Services (DDS). Children between the ages of three and 21 receive special education services through LEAs, as specified in their Individual Education Plan (IEP) (now known as IDEA Part B).

      For children receiving special education services between the age of three and 21, federal IDEA Part B statute requires appeal procedures, including due process hearings, to resolve disagreements regarding educational placements and/or the contents of a pupil's IEP. Federal law further requires that while the dispute is being resolved a pupil is allowed to remain in his or her current educational placement and continue to receive services specified in the IEP. This is referred to as "stay-put." Stay-put ensures stability for the pupil and is intended to minimize disruption and turmoil in the child's education.

      In 2006, the United State Department of Education (USDOE) issued regulations regarding the stay-put provision of IDEA that state the LEA is not required to provide the educational services (Part B) while the dispute is being resolved. AB 1663 (Evans), Chapter 454, Statutes of 2007 made several revisions to state special education law to comply with IDEA, including conforming to IDEA's regulations regarding stay-put provisions. This bill would amend state law to reverse Chapter 454's conforming changes and require LEAs to continue providing early intervention services under IDEA Part C to a child between three and five years of age, as specified.

   3. How did California address the "stay put" provision prior to Chapter 454 ? Prior to Chapter 454, California was silent on the "stay-put" provisions and the courts and dispute resolution hearing offers interpreted this provision at their discretion. For example, in Johnson v. Special Education Hearing Office (9th Cir. 2002) 287 F.3d 1176, the federal 9th Circuit Court of Appeals, which includes California, addressed the issue of stay-put for children transitioning from early intervention to preschool programs. The court held that, under the IDEA stay-put, when disputes arise concerning children transitioning from Part C to Part B, school districts are required to provide a program in conformity with that provided under Part C pending resolution of a dispute. The 3rd Circuit similarly required a school district to provide services per a student's Part C IFSP pending resolution of a dispute.
   4. Federal ARRA funds . In February 2009, the federal government passed the ARRA, which allocated approximately $100 billion nationwide for education programs with the purpose of stimulating the economy. Of this amount, California is expected to receive approximately $8 billion.

      According to SDE, California is expected to receive $11.7 billion in one-time funds for services for students with disabilities pursuant to IDEA, based on the existing federal formula. Of this total, $11.3 billion is for IDEA Part B for children ages 6 - 21 and $400 million is for IDEA Part B, for children ages 3 - 5.

      ARRA also provides $500 million one-time via existing formula for IDEA Part C, for children age 0 to 2. In California, these funds are administered by DDS for the regional centers.

      In April 2009, the Department of Finance (DOF) issued a Section 28.00 letter to allocate $634 million in federal ARRA IDEA funds. Section 28.00 is a provision in the annual budget act that authorizes the Director of DOF to augment the expenditure of unanticipated federal funds. Of the $634 million, $613.5 million one-time is for IDEA Part B (services to children between the ages of 3-21) and $20.58 million one-time is for IDEA Part B - Preschool grants. ARRA statute related to special education funding states: "a state may not use funds paid to it under this part to satisfy state-law mandated funding obligations to LEAs, including funding based on student attendance or enrollment, or inflation." Likewise, according to DOF's letter, "IDEA recovery funds must be allocated and used by LEAs according to current IDEA statutory and regulatory requirements."

      This bill proposes to use on-time ARRA funds to pay the costs of an on-going requirement that is no longer in federal IDEA statute (i.e., the stay-put provision for children ages three to five). According to federal statute and DOF's letter, this is not allowable under ARRA.

   5. SDE and DDS joint venture on transition practices for pupils with special needs . In April 2009, SDE and DDS issued letters to their respected fields regarding smooth transitions from IDEA Part C to IDEA Part B for pupils with special needs. Specifically, both departments will participate in a technical assistance and support project conducted by the Western Regional Resource Center.
   6. The Governor's 2009-10 budget proposed to suspend all but three K-14 mandates through 2010-11 . In December 2008, a San Diego Superior Court judge ruled that the Legislature's practice of budgeting $1,000 in the annual budget act for certain mandates in order to defer payment on the total claim is unconstitutional. The ruling was in response to a lawsuit filed in 2007 by five school districts and the California School Boards Association against DOF and the State Controller seeking payment of past mandate claims and to end the act of deferring K-12 education mandates.

      While constitutional separation of powers left the court with the inability to force the Legislature to make budgetary appropriations for K-12 mandates, its decision increases pressure on the state to pay the annual ongoing cost of these mandates.

   7. Previous legislation -- AB 1768 (Evans), similar to this measure, was held on this committee's suspense file in May 2008.

      Analysis Prepared by : Kimberly Rodriguez / APPR. / (916) 319-2081