Existing law requires local educational agencies to actively and systematically seek out all individuals with exceptional needs, from birth to 21 years of age, inclusive, including children not enrolled in public school programs, who reside in a school district or are under the jurisdiction of a special education local plan area or a county office of education.

This bill would require the State Department of Education, on or before July 1, 2018, to develop a manual providing guidance to local educational agencies on identifying, assessing, supporting, and reclassifying English learners who may qualify for special education services and pupils with disabilities who may be classified as English learners, as specified, with the goal of providing guidance, for voluntary use by local educational agencies, charter schools, and the state special schools on evidence-based and promising practices for the identification, assessment, support, and reclassification of those pupils and to promote a collaborative approach among general education teachers, special education teachers, school administrators, paraprofessionals, other involved personnel, and parents in determining the most appropriate academic placements and services for these pupils. The bill would require the department to post the manual on its Internet Web site and on its professional development Internet Web site. In developing the manual, the bill would require the department to review manuals and other resources produced on this topic by local educational agencies, special education administrators, other organizations, other states, and the federal government, and to establish and consult with a stakeholder group comprised of specified experts and practitioners. As part of implementing these provisions, the bill would require the department, with input from the stakeholder group, to develop a plan for the dissemination of the manual and the means of providing professional development on the content of the manual, as specified, but would condition the actual implementation of the plan on an appropriation for that purpose in the annual Budget Act or another enacted statute. The bill would require the department to submit the plan to the State Board of Education, the Department of Finance, the Legislative Analysts Office, the California Collaborative for Educational Excellence, the Advisory Commission on Special Education, and the appropriate policy and fiscal committees of the Legislature on or before July 1, 2018. The bill would state the intent of the Legislature that its provisions be funded with federal funds, to the extent permissible.

Existing law requires local educational agencies to actively and systematically seek out all individuals with exceptional needs, from birth to 21 years of age, inclusive, including children not enrolled in public school programs, who reside in a school district or are under the jurisdiction of a special education local plan area or a county office of education.

This bill would require the State Department of Education, on or before July 1, 2018, to develop a manual providing guidance to local educational agencies on identifying, assessing, supporting, and reclassifying English learners who may qualify for special education services and pupils with disabilities who may be classified as English learners, as specified, with the goal of providing guidance, for voluntary use by local educational agencies, charter schools, and the state special schools on evidence-based and promising practices for the identification, assessment, support, and reclassification of those pupils and to promote a collaborative approach among general education teachers, special education teachers, school administrators, paraprofessionals, other involved personnel, and parents in determining the most appropriate academic placements and services for these pupils. The bill would require the department to post the manual on its Internet Web site and on its professional development Internet Web site. In developing the manual, the bill would require the department to review manuals and other resources produced on this topic by local educational agencies, special education administrators, other organizations, other states, and the federal government, and to establish and consult with a stakeholder group comprised of specified experts and practitioners. As part of implementing these provisions, the bill would require the department, with input from the stakeholder group, to develop a plan for the dissemination of the manual and the means of providing professional development on the content of the manual, as specified, but would condition the actual implementation of the plan on an appropriation for that purpose in the annual Budget Act or another enacted statute. The bill would require the department to submit the plan to the State Board of Education, the Department of Finance, the Legislative Analysts Office, the California Collaborative for Educational Excellence, the Advisory Commission on Special Education, and the appropriate policy and fiscal committees of the Legislature on or before July 1, 2018. The bill would state the intent of the Legislature that its provisions be funded with federal funds, to the extent permissible.

Existing law requires local educational agencies to actively and systematically seek out all individuals with exceptional needs, from birth to 21 years of age, inclusive, including children not enrolled in public school programs, who reside in a school district or are under the jurisdiction of a special education local plan area or a county office of education.

This bill would require the State Department of Education, on or before July 1, 2018, to develop a manual providing guidance to local educational agencies on identifying, assessing, and supporting supporting, and reclassifying English learners who may qualify for special education services, services and pupils with disabilities who may be classified as English learners, as specified, with the goal of providing guidance, for voluntary use by local educational agencies, including charter schools, and the state special schools on evidence-based and promising practices for the identification, assessment, and support of English learners who may have disabilities support, and reclassification of those pupils and to promote a collaborative approach among general education teachers, special education teachers, school administrators, paraprofessionals, other involved personnel, and parents in determining the most appropriate academic placements and services for these pupils. The bill would require the department to post the manual on its Internet Web site and on its professional development Internet Web site. In developing the manual, the bill would require the department to review manuals and other resources produced on this topic by local educational agencies, special education administrators, other organizations, other states, and the federal government, and to establish and consult with a stakeholder group comprised of specified experts and practitioners. As part of implementing these provisions, the bill would require the department, with input from the stakeholder group, to develop a plan for the dissemination of the manual and the means of providing professional development for staff at schoolsites and administrators of local educational agencies on the content of the manual, as specified, and but would condition the actual implementation of the plan on an appropriation for that purpose in the annual Budget Act or another enacted statute. The bill would require the department to submit the plan to the State Board of Education, the Department of Finance, the Legislative Analysts Office, the California Collaborative for Educational Excellence, the Advisory Commission on Special Education, and the appropriate policy and fiscal committees of the Legislature on or before July 1, 2018. The bill would state the intent of the Legislature that its provisions be funded with federal funds, to the extent permissible.

Existing law requires local educational agencies to actively and systematically seek out all individuals with exceptional needs, from birth to 21 years of age, inclusive, including children not enrolled in public school programs, who reside in a school district or are under the jurisdiction of a special education local plan area or a county office of education.

This bill would require the State Department of Education, on or before July 1, 2018, to develop a manual providing guidance to local educational agencies on identifying identifying, assessing, and supporting English learners who may qualify for special education services, as specified, with the goal of providing state guidance to educators on the identification guidance, for voluntary use by local educational agencies, including charter schools, on evidence-based and promising practices for the identification, assessment, and support of English learners with who may have disabilities and to promote a collaborative approach among general education teachers, special education teachers, school administrators, other personnel, and parents in determining the most appropriate academic placements and supports services for these pupils. The bill would require the department to post the manual on its Internet Web site and on its professional development Internet Web site. In developing the manual, the bill would require the department to review manuals and other resources produced on this topic by other states local educational agencies, special education administrators, other organizations, other states, and the federal government, and to establish and consult with a stakeholder group comprised of specified experts and practitioners. As part of implementing these provisions, the bill would require the department, with input from the stakeholder group, to develop a plan for dissemination of the manual and providing professional development for staff at schoolsites and administrators of local educational agencies on the content of the manual, as specified, and would require the department to submit the plan to the State Board of Education, the Department of Finance, the Legislative Analysts Office, the California Collaborative for Educational Excellence, the Advisory Commission on Special Education, and the appropriate policy and fiscal committees of the Legislature on or before July 1, 2018. The bill would state the intent of the Legislature that its provisions be funded with federal funds, to the extent permissible.

Existing law requires the governing board of a school district to fix and prescribe the duties to be performed by all persons in public school service in the school district.

This bill would state the intent of the Legislature to enact legislation relating to teachers.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2785

Author:(O'Donnell)

As Amended Ver:August 1, 2016

Majority vote

Original Committee Reference: ED.

SUMMARY: Requires the California Department of Education (CDE) to develop a manual providing guidance to local educational agencies (LEAs) on identifying and supporting English learners (ELs) with disabilities.

The Senate amendments:

1. Make implementation of the professional development plan contingent upon an appropriation for that purpose in the annual Budget Act or other statute.
2. Requires that the manual address the identification and support of students with disabilities who may later be classified as English learners.
3. Require that the manual address means of ensuring that English learners with disabilities have access to instruction in the core curriculum.
4. Make technical and clarifying changes.

FISCAL EFFECT: According to the Senate Appropriations Committee:

1. Contract for manual: CDE indicates that it would contract for the development of the manual for such activities as subcontracting with experts, compiling and analyzing resources from other states, conducting stakeholder meetings, printing necessary materials, filming stakeholder meetings, and travel. The total amount of the contract is anticipated to be $450,000 to cover the period from January 1, 2017 to July 1, 2018. (Federal funds)
2. Contract monitoring: In addition, the CDE cites the need for one limited-term position until July 1, 2018 at a cost of $229,000 to oversee the contract and to act as the liaison with the EL Division within the department. (Federal funds)
3. Manual Implementation: This bill requires the state and LEAs to collaborate in meeting the objectives of disseminating the manual and providing professional development on its contents. This creates a cost pressure to implement this plan which the CDE indicates would result in ongoing costs of $154,000 for one position to provide training and technical assistance to LEAs. However, staff notes that the need for this activity is likely to diminish over time. In addition, this creates a local and state cost pressure to fund professional development and other activities necessary to implement the guidance in the manual. Staff notes that the bill makes implementation of that guidance contingent upon funding provided for that purpose.
4. The CDE indicates that one-time and ongoing federal special education carryover funds would be available to support its activities required by this bill. This would require approval through the annual budget process to ensure the availability of funds and a subsequent increase the CDE's federal fund spending authority.

COMMENTS:

Long-standing concerns about over/under identification of English learners for special education. The inappropriate identification of English learners for special education has been a concern since at least the 1960's. Below is a summary of relevant research, litigation, and policy related to this issue:

1960's: An article (Dunn, 1968) questioning the high rate of students of color and English learners in special education classes sparked a civil rights debate about disproportionate enrollment in special education. Research on the demographics of special education enrollment in Riverside, California, begun in the 1960's and ultimately published in 1973 found that black and Spanish-surnamed children were overidentified for special education. It found that among children scoring at low levels on IQ [intelligence quotient] tests, Spanish-surnamed and low income students were more likely to be placed in special classes, and that 81% of students placed in special classes never returned to mainstream programs. In a 1969 report by the President's Committee on Mental Retardation entitled "The Six Hour Retarded Child," the CDE reported that Spanish-surnamed children were three times more likely to be identified for special education as their peers.

1970's: In the 1970 Diana v. California State Board of Education case, the court reviewed the case of nine Mexican American students placed in classes for "mentally retarded" students on the basis of I.Q. scores. After being retested bilingually, the students' scores no longer fell within the disabled range. The case was settled out of court, and the settlement required testing in students' home language in the assessment process. Also in 1970 the U.S. [United States] Office of Civil Rights issued a memorandum stating that school districts "must not assign national origin, minority group students to classes for the mentally retarded on the basis of criteria which essentially measure or evaluate English language skills."

1980's: The U.S. Department of Education Office of Civil Rights (OCR) began to produce estimates of the extent and distribution of disproportionality in special education, which was found to be consistent over time. In response to the 1974 Lau v. Nichols Supreme Court decision, bilingual programs grew in number. According to a report published by the U.S. Department of Education, "in an almost complete turnaround from the days in which discriminatory overrepresentation of minority language youngsters in special education classes was the issue, there emerged a concern that minority language youngsters who also needed special education were not being appropriately screened or placed."

1990's: The federal IDEA [Individuals with Disabilities Education Act] reauthorization of 1997 required that states collect data for the purpose of monitoring and reducing disproportionality in special education, and as appropriate provide for the revision of policies, procedures and practices used in such identification. Proposition 227 of 1998 dramatically reduced the number of bilingual education programs operating in California schools.

2000's: The federal IDEA reauthorization of 2004 expanded requirements for the monitoring of disproportionality, requiring that states have policies and procedures in place to prevent inappropriate identification by race or ethnicity, and requiring LEAs with significant disproportionality to devote the maximum amount of Part B funds allowable (15%) to early intervening programs. Disproportionality research began to focus on the forces that shape and maintain disproportionate representation.

2010's: The 2015 federal Every Student Succeeds Act (ESSA) included new requirements to report on number and percentage of ELs, disaggregated by disability, who meet state-determined long-term goals and state academic standards, for four years after being reclassified. In 2015 the U.S. Department of Education also called on states to create guidance on English learners and special education for school districts (see below). A proposed federal rule (now pending) would also standardize the methodology states must use to determine whether significant disproportionality based on race and ethnicity is occurring in the state and its LEAs, and require that LEAs identify and address the factors contributing to significant disproportionality. An initiative on the November, 2016 ballot proposes to repeal parts of Proposition 227, expanding bilingual program options for students.

Disproportionate representation of English learners in special education in California. Research on English learners and special education identification in California shows that:

1. According to the CDE, while 10% of California students qualify for special education services, 9.1% of English proficient students and 14.4% of English learners qualified for these services in 2014-15. This indicates that ELs are identified for special education services at a rate that is 60% higher than for non-ELs.
2. Data from the CDE suggest the underidentification of ELs for special education in the early grades. In 2014-15 English learners were identified for special education at a slightly lower rate in the early grades. In first grade 7.7% of ELs vs. 7.9% of non-ELs were identified as requiring special education services, and in second grade the rates were 8.6% for ELs vs. 9.0% for non-ELs.
3. Data from the CDE also show that beginning in the third grade the identification rate for ELs becomes increasingly disproportionate, and by the secondary grades the percentage of ELs in special education rises to very high levels. By grade seven the rate of ELs in special education is more than two and half times that of non-ELs (23.0% vs. 9.1% for non-ELs), and by grade 12, 26.2% of ELs are in special education, compared to 9.9% of non-ELs. In grade twelve this represents an EL identification rate of nearly 2.7 times that of their non-EL peers.
4. According to the CDE, approximately 1% of English learners were provided test accommodations on the California Standards Tests in 2009. This rate declined from about 2% in 2006.
5. California has an above average percentage of English learners in special education compared to other states. Data reported by OCR indicate that in 2011-12 California identified 13.3% of English learners, compared to a national average rate of 11.9%. OCR data also show that California enrolls 35% of all English learners in special education in the country.
6. Research indicates that, of California students identified for special education, English learners are overrepresented in certain disability categories, particularly intellectual disability, learning disabilities, and speech and language impairment.
7. Older research (2000) indicates that California ELs receiving the least language support were more likely to be placed in special education programs, and that students receiving all of their instruction in English were three times as likely to be identified for special education services than those receiving some primary language support.

The key issues: language, reclassification, intervention, referral, assessment, instruction. What are the causes of this long-standing problem? The research points to some key issues, most significantly:

1. Inability to distinguish between a language learning need and a disability. Educators often face challenges determining whether a student's difficulty progressing academically is a result of a disability or a language barrier. For example, in the area of English language arts, teachers may confuse the signs of learning disabilities with the development of pronunciation, syntax, or semantic development. Educators may also be hesitant to refer a student with a possible disability until their English proficiency improves. Research has identified this challenge as a key factor in both the overidentification and underidentification of English learners for special education services.
2. Poor reclassification practices. As noted above, the percentage of ELs in special education increases through the grades, becoming increasingly disproportionate relative to non-ELs, especially in the secondary grades. For some students with disabilities this is likely due to their inability - due to their disability - to meet one of the criteria for reclassification: proficiency in English language arts. The manual for the California English Language Development Test (CELDT) states that "students with disabilities…are to be provided with the same opportunity to be reclassified as students without disabilities." This guidance also 1) states that multiple criteria may be used in concert with the four reclassification criteria authorized in statute, and 2) authorizes Individualized Education Program (IEP) teams to determine appropriate measures of English proficiency which would be equivalent to an English-proficient peer with similar disabilities. But based on the above data showing significant disproportionality in the secondary grades it would appear that these authorizations are not effectively or consistently used.
3. Insufficient use of assessment accommodations. Assessment accommodations, such as primary language support, English language reference materials, and the option for oral response in English are a few of the ways in which educators can get a more accurate picture of an EL's abilities. Research suggests that overreliance on standardized tests to identify ELs with learning disabilities results in underidentification in the early elementary grades and overidentification in the subsequent grades. The use of accommodations is viewed as a critical part of the accurate identification of ELs for special education services, but as noted above, in 2009 only 1% California’s ELs were provided language accommodations on state assessments.
4. Poorly designed and implemented referral strategies. In a 2015 report the Regional Educational Laboratory West (WestEd) identified poorly designed and implemented referral strategies as a major barrier to accurate identification and appropriate services for ELs. They note an absence of systematic referral processes for ELs in which, for example, educators know when and under which circumstances to refer, student study teams have protocols for review of multiple and extrinsic factors, and administrators have established processes for interpretation and translation for parents in special education proceedings. Another such issue, the makeup of IEP teams, was highlighted in a 2015 report by Policy Analysis for California Education (PACE), which noted that referral teams should include EL specialists and special education specialists who are trained to assess EL students.
5. Lack of intervention strategies. Early intervention can reduce referrals for special education services, and strategies such as response to intervention (a multi-tiered structure of increasingly intensive and focused instruction, assessment, and intervention) are increasingly employed by schools. Some schools also use pre-referral strategies such as a child study team to make instructional modifications and provide supports before a student is referred for assessment. But research indicates that the absence of consistent intervention strategies remains an issue in the identification and instruction of ELs with disabilities.
6. Inappropriate instructional practices. ELs with disabilities require specialized instruction in order to progress academically both prior to referral and after qualifying for services. But research indicates that educators have difficulty providing consistent, adequate services to ELs with disabilities, in part due to gaps in skills required to meet both sets of needs. Research also points to lack of consistent monitoring of student progress across EL and special education systems.

These and other topics, such as strategies for working with families and guidance on the development of IEPs, are required to be included in the manual proposed by this bill.

What works to address concerns about English learners and special education? In 2015 WestEd published a review of guidelines and protocols used by the 20 states with the largest populations of ELs, and identified five guiding principles states should have in place to meet the needs of EL students with disabilities:

1. Have a clear policy statement that additional considerations will be used in placing EL students in special education programs
2. Provide test accommodations for EL students
3. Employ exit criteria for English language support programs for EL students in special education
4. Assess EL students' language and disability needs using a response to intervention approach
5. Provide publicly available manuals to aid educators in identifying and supporting EL students who have learning disabilities

Analysis Prepared by: Tanya Lieberman / ED. / (916) 319-2087 FN: 0004221

 THIRD READING  

Bill No: AB 2785

Author:

:

Vote:

SENATE EDUCATION COMMITTEE: 9-0, 6/22/16

AYES: Liu, Block, Hancock, Huff, Leyva, Mendoza, Monning, Pan, Vidak

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/11/16

AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen

ASSEMBLY FLOOR: 80-0, 5/31/16 - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST: This bill requires, by July 1, 2018, the California Department of Education (CDE) to develop a manual for the purpose of providing guidance to local educational agencies (LEA) on identifying, assessing, supporting and reclassifying English learners who may qualify for special education services and students with disabilities who may be classified as English learners.

ANALYSIS:

Existing law:

1. Requires LEAs to actively and systematically seek out all individuals with exceptional needs, from birth to 21 years of age. (Education code § 56300)
2. Requires the determination of a student’s primary language upon enrollment and assessment of the language skills of all students whose primary language is other than English. (EC § 52164.1)
3. Requires, under federal law, that an individualized education program (IEP) team, in the case of an English learner, consider the language needs of the student as such needs relate to his or her IEP. (34, CFR § 300.346)
4. Requires LEAs to take any action necessary to ensure that, in an IEP team meeting, the parent or guardian understands the proceeding, including arranging for an interpreter for parents or guardians with deafness or whose native language is a language other than English. (EC § 56341.5)
5. Requires proposed special education assessment plans to be provided to parents in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so. (EC § 56321)
6. Requires LEAs to give the parent or guardian a copy of the IEP, at no cost to the parent or guardian. (EC § 56341.5)
7. Defines “consent” in special education proceedings to include situations in which the parent or guardian has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or other mode of communication. (EC § 56021.1)
8. Prohibits, through federal law, a determination that a student is eligible for special education if the determining factor is limited English proficiency. (34, CFR §300.309)
9. Requires, through federal law, the California Department of Education (CDE) to report annually to the federal government on the number of students with disabilities, including the number who have disabilities, and the incidence and duration of disciplinary actions by race, ethnicity, and limited English proficiency status. (34, CFR § 300.600)

This bill:

1. Requires CDE to develop a manual for the purpose of providing guidance to LEAs on identifying, assessing, supporting and reclassifying English learners who may qualify for special education services and students with disabilities who may be classified as English learners.
2. Specifies that the goal is to provide guidance for voluntary use by LEAs on evidence-based and promising practices for the identification, assessment, support and reclassification of these students and to promote collaboration as specified, in determining the most appropriate academic placements and services for these students.
3. Requires CDE to do all of the following in the development of the manual:
   1. Review manuals and other resources provided on this topic by the specified public entities and organizations.
   2. Establish and consult with stakeholder groups, comprised of experts and practitioners in either special education, English learner education, or in both.
4. Requires the manual to include all of the following topics:
   1. Guidance for accurately identifying English learners who may have disabilities and accurately classifying students with disabilities as English learners, including on avoiding overidentification and underidentification of these students for special education services and in different disability categories and in different grade spans.
   2. Information on second language acquisition and progress, including guidance on distinguishing between language acquisition and disabilities.
   3. Information on the role of culture and acculturation, to the extent it is related to the process of identifying English learner reclassification process for English learners with disabilities.
   4. Examples of pre-referral strategies, early interventions, and early intervening strategies specifically addressing the needs of English learners, as specified.
   5. Examples of any plans or processes used by LEAs for continuous evaluation and systemic review and guidance on sharing information between special education and English learner programs within LEAs for the purpose of tracking effectiveness, to the extent permitted under state and federal law.
   6. Guidance on all of the following areas:
      1. Referral processes and use of assessments.
      2. Consideration of extrinsic factors, such as vision, hearing and health, in the identification of students.
      3. Development of IEPs for English learners.
      4. How to support the language and content learning needs of English learners who may have disabilities.
      5. Placement or continued placement in bilingual programs and on providing services and instruction in primary languages.
      6. Special education exit and English learner reclassification process for English learners with disabilities.
      7. Working with families including meeting the needs of nonnative English speaking parents, guardians, and educational rights holders in special education proceedings.
   7. State and federal law, regulations, and guidance related to the rights of English learners and students with disabilities.
5. Requires that the manual be:
   1. Consistent with state and federal law, regulations, and guidance regarding English learners and special education.
   2. Written for ease of use by educators. The department is encouraged to incorporate features such as flowcharts, checklists, sample forms and case examples.
6. Requires the CDE to:
   1. Post the manual on its Internet Web site and on its professional development Internet Web site.
   2. Develop a plan with input from the stakeholder group, for dissemination of the manual and providing professional development for staff at schoolsites and administrators of LEAs on the content of the manual, as specified. Implementation of the plan is contingent upon funding provided in the annual Budget Act for that purpose.
7. Requires that the plan be submitted to the State Board of Education, the Department of Finance, the Legislative Analyst’s Office, the California Collaborative for Educational Excellence, the Advisory Commission on Special Education, and the appropriate policy and fiscal committees of the Legislature on or before July 1, 2018.
8. Defines, for the purpose of this bill, the following terms:
   1. “English learners” includes pupils who have been classified as English learners and those who may later be classified as English learners.
   2. “Pupils with disabilities” includes pupils who have been or may be identified as individuals with exceptional needs, as defined in section 56026 of the Education Code, including pupils who have been or may be identified as having a low incidence disability, as defined in section 56020.5, or a severe disability, as defined in Section 56030.5 and also includes students with disabilities who may be later classified as English learners.
9. States the intent of the Legislature that these activities be paid for with federal funds.

Comments

1. Need for the bill. According to the author, “the inappropriate identification of English learners for special education services is a long-standing problem, with serious consequences for student learning. Research indicates that this problem, first identified in the 1960’s, persists today. Students may mistakenly be identified as requiring special education services when their language proficiency is mistaken for a disability. Conversely, English learners may be prevented from receiving needed special education services when disabilities are mistaken for language learning needs.” This bill seeks to promote accurate identification of English learners who may qualify for special education services by requiring the CDE to provide evidence based guidance to educators in the form of a manual.
2. Identifying English learners for special education services at a higher rate. According to the CDE, while 10% of California students qualify for special education services, 9.1% of English proficient students and 14.4% of English learners qualify for these services. This shows that English learners are identified for special education services at a higher rate than for non-English learners. Compared to other states, California has an above average percentage of English learners in special education and 35% of all English learners in special education in the country. The identification, assessment and instruction of English learners who may qualify for special education services is a complex process and inappropriate placements may cause a spike in rates. This bill seeks to assist educators to distinguish between language acquisition and disability. Part of the strategy to help educators improve in this area is sharing information on pre-referral and early intervention strategies; a process for continuous evaluation and systemic review; as well as providing information on the role of culture and acculturation in the process of identifying English learner reclassification for English learners with disabilities.
3. Related research. This bill implements recommendations from multiple reports on English learners and special education identification. It primarily draws from two reports issued in 2015, Identifying and Supporting English Learner Students with Learning Disabilities: Key Issues in the Literature and State Practice, by the Regional Educational Laboratory West (WestEd) and Improving the Opportunities and Outcomes of California’s Student Learning English released by Policy Analysis for California Education. The following are key issues raised by these reports that are related to the provisions of this bill:
   1. Inability to distinguish between a language learning need and a disability. Educators often face challenges determining whether a student’s difficulty progressing academically is a result of a disability or a language barrier. For example, in the area of English language arts, teachers may confuse the signs of learning disabilities with the development of pronunciation, syntax, or semantic development. Educators may also be hesitant to refer a student with a possibility disability until their English proficiency improves. This is a key factor in both the over identification and under identification of English learners for special education services.
   2. Insufficient use of assessment accommodations. Assessment accommodations, such as primary language support, English language reference materials, and the option for oral response in English are a few of the ways in which educators can get more accurate picture of English learners’ abilities. Overreliance on standardized tests for English learners with disabilities results in under-identification in the early elementary grades and over-identification in subsequent grades.
   3. Poorly designed and implemented referral strategies. Poorly designed referral strategies are a major barrier for accurate identification and designating appropriate services. A systematic referral process is needed. This process would allow educators to know when and under which circumstances to refer, establish protocols for review of multiple factors and create a process for interpretation and translation for parents in special education proceedings. Referral teams should include English learner specialist and special education specialist who are trained to assess English learner students.
   4. Lack of intervention strategies. Early intervention can reduce referrals for special education services and strategies such as response to intervention are increasingly employed by schools. Some schools also use pre-referral strategies such as a child study team to make instructional modifications and provide supports before a student is referred for assessment.
   5. Inappropriate instructional practices. English learners with disabilities require specialized instruction in order to progress academically both prior to referral and after qualifying for services. However, educators have difficulty providing consistent, adequate services to English learners with disabilities, in part due to gaps in skills required to meet both sets of needs.

The guidance manual established by the provisions of this bill aims to address each of these points by incorporating the wide array of resources produced on this topic, bringing together a stakeholder group comprised of experts in both special education and English learner education to guide educators in appropriately addressing the needs of this unique student population.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to the Senate Appropriations Committee:

• Contract for manual: CDE indicates that it would contract for the development of the manual for such activities as subcontracting with experts, compiling and analyzing resources from other states, conducting stakeholder meetings, printing necessary materials, filming stakeholder meetings, and travel. The total amount of the contract is anticipated to be $450,000 to cover the period from January 1, 2017 to July 1, 2018. (Federal funds)
• Contract monitoring: In addition, the CDE cites the need for one limited-term position until July 1, 2018 at a cost of $229,000 to oversee the contract and to act as the liaison with the English Learners Division within the department. (Federal funds)
• Manual Implementation: This bill requires the state and LEAs to collaborate in meeting the objectives of disseminating the manual and providing professional development on its contents. This creates a cost pressure to implement this plan which the CDE indicates would result in ongoing costs of $154,000 for one position to provide training and technical assistance to LEAs. However, Senate Appropriations staff notes that the need for this activity is likely to diminish over time. In addition, this creates a local and state cost pressure to fund professional development and other activities necessary to implement the guidance in the manual. Staff notes that the bill makes implementation of that guidance contingent upon funding provided for that purpose.
• The CDE indicates that one-time and ongoing federal special education carryover funds would be available to support its activities required by this bill. This would require approval through the annual budget process to ensure the availability of funds and a subsequent increase the CDE’s federal fund spending authority.

SUPPORT: (Verified 8/11/16)

State Superintendent of Public Instruction Tom Torlakson

California Association for Bilingual Education

California Immigrant Policy Center

California State PTA

California Teachers Association

Californians Together

Los Angeles Unified School District

Riverside County Superintendent of Schools

Santa Clara County Office of Education

Special Education Local Plan Area Administrators of California

The Arc and United Cerebral Palsy California Collaboration

The Education Trust-West

The State Council on Developmental Disabilities

OPPOSITION: (Verified 8/11/16)

None received

ASSEMBLY FLOOR: 80-0, 5/31/16

AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon

Prepared by:

8/15/16 20:30:05

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Ricardo Lara, Chair

2015 - 2016 Regular Session

AB 2785 (O'Donnell) - Special education: English learners: manual

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

This bill requires, by July 1, 2018, the California Department of Education (CDE) to develop a manual providing guidance to local educational agencies (LEAs) on identifying, assessing, supporting, and reclassifying English learners (EL) who may qualify for special education services.

Fiscal Impact:

• Contract for manual: CDE indicates that it would contract for the development of the manual for such activities as subcontracting with experts, compiling and analyzing resources from other states, conducting stakeholder meetings, printing necessary materials, filming stakeholder meetings, and travel. The total amount of the contract is anticipated to be $450,000 to cover the period from January 1, 2017 to July 1, 2018. (Federal funds)
  
• Contract monitoring: In addition, the CDE cites the need for one limited-term position until July 1, 2018 at a cost of $229,000 to oversee the contract and to act as the liaison with the EL Division within the department. (Federal funds)
  
• Manual Implementation: This bill requires the state and LEAs to collaborate in meeting the objectives of disseminating the manual and providing professional development on its contents. This creates a cost pressure to implement this plan which the CDE indicates would result in ongoing costs of $154,000 for one position to provide training and technical assistance to LEAs. However, staff notes that the need for this activity is likely to diminish over time. In addition, this creates a local and state cost pressure to fund professional development and other activities necessary to implement the guidance in the manual. Staff notes that the bill makes implementation of that guidance contingent upon funding provided for that purpose.

The CDE indicates that one-time and ongoing federal special education carryover funds would be available to support its activities required by this bill. This would require approval through the annual budget process to ensure the availability of funds and a subsequent increase the CDE’s federal fund spending authority.

Background:

Existing law requires LEAs to actively seek out all individuals with exceptional needs, from birth to age 21. Existing state law also requires the determination of a student’s primary language upon enrollment and assessment of the language skills of all students whose primary language is other than English.

Federal law requires assessments and other evaluation materials used for determining whether a child is eligible for special education services to be provided in the child’s native language or other mode of communication and in the form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally, unless it is clearly not feasible to do so. Federal law also requires that an IEP team, in the case of an English learner, consider the language needs of the student as they relate to his or her IEP. It prohibits a determination that a student is eligible for special education if the determining factor is limited English proficiency.

A recent study by the Regional Educational Laboratory West (WestEd), Identifying and Supporting English Learner Students with Learning Disabilities: Key Issues in the Literature and State Practice, states that there is evidence of English learner students being both over- and underrepresented in special education programs. According to the author, “Students may mistakenly be identified as requiring special education services when their language learning needs are mistaken for a disability. Conversely, English learners may be prevented from receiving needed special education services when disabilities are mistaken for language learning needs. Both programs can result in inappropriate placements and services which hold students back from academic progress.”

Proposed Law:

This bill requires, by July 1, 2018, the CDE to develop a manual providing guidance to LEAs on identifying, assessing, supporting, and reclassifying ELs who may qualify for special education services and students with disabilities who may be classified as ELs. The goal of the manual is to provide guidance to LEAs on evidence-based practices for the identification, assessment, support, and reclassification of ELs who may have disabilities and to promote a collaborative approach in determining the most appropriate academic placements and services for these students.

In developing the manual, the CDE is required to review other manuals and resources developed by various entities, including other state and the federal government and consult with a stakeholder group, as specified.

This bill also requires the CDE to post the manual on its website and develop a plan for disseminating the manual and providing professional development on its contents. Implementation of the plan is contingent upon funding provided. The plan is required to be submitted to the State Board of Education, the Department of Finance, the Legislative Analyst’s Office, the Collaborative for Educational Excellence, the Advisory Commission on Special Education, and the Legislature by July 1, 2018.

The manual is required to cover various topics, including, but not limited to:

• Identifying ELs who may have disabilities and accurately classifying students with disabilities as ELs;
• Second language acquisition and progress;
• Examples of early interventions and processes used by LEAs for continuous evaluation and review;
• Guidance on referral processes, use of assessments, consideration of extrinsic factors in the identification of students, the development of IEPs for ELs, types of supports, special education exit and EL reclassification process; meeting the needs of nonnative English speaking parents; and
• Laws and guidance related to the rights of ELs and students with disabilities.

Related Legislation:

AB 2091 (Lopez, 2016) requires local educational agencies to provide parents with a translated copy of an individualized education program and other documents, upon request. AB 2091 is pending in this committee.

AB 2350 (O’Donnell, 2016) prohibits a middle or high school EL students from being prevented from enrolling in courses required for graduation, grade promotion, or meeting the A-G subject requirements for admission to the University of California or California State University. AB 2350 is pending in this committee.

-- END --

Date of Hearing: April 20, 2016

ASSEMBLY COMMITTEE ON EDUCATION

Patrick O'Donnell, Chair

ABPCA Bill Id:AB 2785 (

Author:O'Donnell) – As Amended Ver:April 7, 2016

SUBJECT: Special education: English learners: manual

SUMMARY: Requires the California Department of Education (CDE) to develop a manual providing guidance to local educational agencies (LEAs) on identifying and supporting English learners (ELs) with disabilities. Specifically, this bill:

1. Requires, on or before July 1, 2018, the CDE to develop a manual providing guidance to LEAs on identifying and supporting ELs who qualify for special education services.
2. States that the goal of the manual is to provide state guidance to educators on the identification and support of ELs with disabilities and to promote a collaborative approach among teachers, school administrators, other personnel, and parents in determining the most appropriate academic placements and supports for these pupils.
3. Requires CDE, in developing the manual, to review manuals produced on this topic by other states, and consult with a stakeholder group comprised of experts and practitioners who have expertise or experience in either special education, English learner education, or both.
4. Requires the manual to include all of the following topics:
5. guidance for accurately identifying English learners with disabilities, including guidance on avoiding the over-identification and under-identification of these students
6. information on second language acquisition and progress
7. a sample prereferral or intervention program
8. guidance on referral processes
9. guidance on the use of assessments, including the use of multiple measures as well as assessment accommodations for both language and disability
10. guidance on the development of individualized education programs for English learners
11. guidance on how to support the language and content learning needs of English learners with disabilities, including how to do so in inclusive settings
12. information on the role of culture and acculturation
13. guidance for working with families, including guidance on meeting the needs of nonnative English speakers in special education proceedings
14. a sample plan for continuous evaluation and systemic review, including guidance on tracking effectiveness and sharing information between special education and English learner programs within LEAs, to the extent permitted under state and federal law
15. laws and regulations related to the rights of English learners and pupils with disabilities.
16. Requires that the manual be written for ease of use by educators and that it include graphic organizers and other helpful features such as flowcharts, checklists, sample forms, and case examples.
17. Requires the CDE, with input from the stakeholder group, to develop a plan for dissemination of the manual and providing professional development on the content of the manual. Requires that the plan address how LEAs can collaborate with the CDE in meeting both of these objectives.
18. Requires that the plan be submitted to the State Board of Education (SBE), the Department of Finance, the Legislative Analyst’s Office, and the appropriate policy and fiscal committees of the Legislature on or before July 1, 2018.
19. States the intent of the Legislature that this project be funded with federal funds, to the extent permissible.

EXISTING LAW:

1. Federal law prohibits a determination that a student is eligible for special education if the determining factor is limited English proficiency.
2. Federal law requires that an individualized education program (IEP) team, in the case of an English learner, consider the language needs of the student as such needs relate to his or her IEP.
3. Federal law requires the CDE to report annually to the federal government on the number of students with disabilities, including the number who have disabilities, and the incidence and duration of disciplinary actions by race, ethnicity, and limited English proficiency status.
4. Federal law authorizes state agencies to use the administrative portion of federal special education funds for, among other things, providing training to personnel in meeting the needs of English learners, and working with families of English learners, in order fto “ensure appropriate identification of students who may be eligible for special education services, and to prevent the misidentification, in appropriate overidentification, or underidentification of children as having a disability, especially minority and limited English proficient children.”
5. Federal law authorizes federal grants to states for the purpose of ensuring appropriate placements and services for all students and to reduce disproportionality in eligibility, placement, and disciplinary actions for minority and limited English proficient students.
6. State and federal law require LEAs to take any action necessary to ensure that in an IEP team meeting the parent or guardian understands the proceedings at a meeting, including arranging for an interpreter for parents or guardians whose native language is a language other than English.
7. State and federal law defines “consent” in special education proceedings as situations in which the parent or guardian has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or other mode of communication. State and federal law also require that proposed assessment plans be provided to parents “in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so.”
8. Title VI of the federal Civil Rights Act of 1964 prohibits recipients of federal financial assistance, including school districts, from discriminating on the basis of race, color, or national origin. Title VI’s prohibition on national origin discrimination requires school districts to take “affirmative steps” to address language barriers so that EL students may participate meaningfully in schools’ educational programs.
9. The federal Every Student Succeeds Act (ESSA), signed into law in 2015, requires states to report on number and percentage of ELs 1) meeting state-determined long-term goals, disaggregated by disability, 2) attaining English proficiency, 3) meeting challenging state academic standards for 4 years after exiting, disaggregated by disability, and 4) who have not attained proficiency within 5 years of classification

FISCAL EFFECT: Unknown

COMMENTS:

Need for the bill. The author states, “The inappropriate identification of English learners for special education services is a long-standing problem, with serious consequences for student learning.

Research indicates that this problem, first identified in the 1960’s, persists today. For example, while overall 10% of California students qualify for special education services, 14.4% of English learners qualify for these services. California has an above average percentage of English learners in special education relative to other states, and 35% of all English learners in special education in the country.

There is wide recognition this is a dual problem: the over-identification and under-identification of English learners for special education services. Students may be mistakenly identified as requiring special education services when their language learning needs are mistaken for a disability. Conversely, English learners may be prevented from receiving needed special education services when disabilities are mistaken for language learning needs. Both problems can result in inappropriate placements and services which hold students back from academic progress.

Research indicates that at the heart of this problem are modifiable factors, such as a lack of understanding of language acquisition, unfamiliarity with best practices for serving English learners with disabilities, poorly designed and implemented referral processes, and lack of coordination between English learner and special education programs.

The identification, assessment, and instruction of English learners who may qualify for special education services involves complex and interrelated processes, but no state guidance currently exists to guide educators in this area.

AB 2785 directs the California Department of Education, in consultation with a group of experts and practitioners, to develop a manual to support educators on evidence-based practices for the identification, assessment, and instruction of English learners who have disabilities. Several other states have provided this kind of support to their educators, and it is supported by the federal government. There is broad acknowledgement that this kind of guidance would be a highly useful tool in serving these students.”

Long-standing concerns about over/under identification of English learners for special education. The inappropriate identification of English learners for special education has been a concern since at least the 1960’s. Below is an attempt at a summary of relevant research, litigation, and policy related to this issue:

1960’s: An article (Dunn, 1968) questioning the high rate of students of color and English learners in special education classes sparked a civil rights debate about disproportionate enrollment in special education. Research on the demographics of special education enrollment in Riverside, California, begun in the 1960’s and ultimately published in 1973 found that black and Spanish-surnamed children were overidentified for special education. It found that among children scoring at low levels on IQ tests, Spanish-surnamed and low income students were more likely to be placed in special classes, and that 81% of students placed in special classes never returned to mainstream programs. In a 1969 report by the President’s Committee on Mental Retardation entitled “The Six Hour Retarded Child,” the CDE reported that Spanish-surnamed children were three times more likely to be identified for special education as their peers.

1970’s: In the 1970 Diana v. California State Board of Education case, the court reviewed the case of nine Mexican American students placed in classes for “mentally retarded” students on the basis of I.Q. scores. After being retested bilingually, the students’ scores no longer fell within the disabled range. The case was settled out of court, and the settlement required testing in students’ home language in the assessment process. Also in 1970 the U.S. Office of Civil Rights issued a memorandum stating that school districts “must not assign national origin, minority group students to classes for the mentally retarded on the basis of criteria which essentially measure or evaluate English language skills.”

1980’s: The U.S. Department of Education Office of Civil Rights (OCR) began to produce estimates of the extent and distribution of disproportionality in special education, which was found to be consistent over time. In response to the 1974 Lau v. Nichols Supreme Court decision, bilingual programs grew in number. According to a report published by the U.S. Department of Education, “in an almost complete turnaround from the days in which discriminatory overrepresentation of minority language youngsters in special education classes was the issue, there emerged a concern that minority language youngsters who also needed special education were not being appropriately screened or placed.”

1990’s: The federal IDEA reauthorization of 1997 required that states collect data for the purpose of monitoring and reducing disproportionality in special education, and as appropriate provide for the revision of policies, procedures and practices used in such identification. Proposition 227 of 1998 dramatically reduced the number of bilingual education programs operating in California schools.

2000’s: The federal IDEA reauthorization of 2004 expanded requirements for the monitoring of disproportionality, requiring that states have policies and procedures in place to prevent inappropriate identification by race or ethnicity, and requiring LEAs with significant disproportionality to devote the maximum amount of Part B funds allowable (15%) to early intervening programs. Disproportionality research began to focus on the forces that shape and maintain disproportionate representation.

2010’s: The 2015 federal Every Student Succeeds Act (ESSA) included new requirements to report on number and percentage of ELs, disaggregated by disability, who meet state-determined long-term goals and state academic standards, for 4 years after being reclassified. In 2015 the U.S. Department of Education also called on states to create guidance on English learners and special education for school districts (see below). A proposed federal rule (now pending) would also standardize the methodology states must use to determine whether significant disproportionality based on race and ethnicity is occurring in the state and its LEAs, and require that LEAs identify and address the factors contributing to significant disproportionality. An initiative on the November, 2016 ballot proposes to repeal parts of Proposition 227, expanding bilingual program options for students.

California English learners identified at far higher rate than non-English learners; state has above average rate nationally. Research on English learners and special education identification in California shows that:

• According to the CDE, while 10% of California students qualify for special education services, 9.1% of English proficient students and 14.4% of English learners qualify for these services. This indicates that ELs are identified for special education services at a rate that is 60% higher than for non-ELs.
• Data from the CDE suggest the underidentification of ELs for special education in the early grades. In 2014-15 English learners were identified for special education at a slightly lower rate in the early grades. In first grade 7.7% of ELs vs. 7.9% of non-ELs were identified as requiring special education services, and in second grade the rates were 8.6% for ELs vs. 9.0% for non-ELs.
• Data from the CDE also show that beginning in the third grade the identification rate for ELs becomes increasingly disproportionate, and by the secondary grades the percentage of ELs in special education rises to very high levels. By grade seven the rate of ELs in special education is more than two and half times that of non-ELs (23.0% vs. 9.1% for non-ELs), and by grade twelve 26.2% of ELs are in special education, compared to 9.9% of non-ELs. In grade twelve this represents an EL identification rate of nearly 2.7 times that of their non-EL peers.
• According to the CDE, approximately 1% of English learners were provided test accommodations on the California Standards Tests in 2009. This rate declined from about 2% in 2006.
• California has an above average percentage of English learners in special education compared to other states. Data reported by OCR indicate that in 2011-12 California identified 13.3% of English learners, compared to a national average rate of 11.9%. OCR data also show that California enrolls 35% of all English learners in special education in the country.
• Research indicates that, of California students identified for special education, English learners are overrepresented in certain disability categories, particularly intellectual disability, learning disabilities, and speech and language impairment.
• Older research (2000) indicates that California ELs receiving the least language support were more likely to be placed in special education programs, and that students receiving all of their instruction in English were three times as likely to be identified for special education services than those receiving some primary language support.

The key issues: language, reclassification, intervention, referral, assessment, instruction. What are the causes of this long-standing problem? The research points to some key issues, most significantly:

• Inability to distinguish between a language learning need and a disability. Educators often face challenges determining whether a student’s difficulty progressing academically is a result of a disability or a language barrier. For example, in the area of English language arts, teachers may confuse the signs of learning disabilities with the development of pronunciation, syntax, or semantic development. Educators may also be hesitant to refer a student with a possible disability until their English proficiency improves. Research has identified this challenge as a key factor in both the overidentification and underidentification of English learners for special education services.
• Poor reclassification practices. As noted above, the percentage of ELs in special education increases through the grades, becoming increasingly disproportionate relative to non-ELs, especially in the secondary grades. For some students with disabilities this is likely due to their inability - due to their disability - to meet one of the criteria for reclassification: proficiency in English language arts. The manual for the California English Language Development Test (CELDT) states that “students with disabilities…are to be provided with the same opportunity to be reclassified as students without disabilities.” This guidance also 1) states that multiple criteria may be used in concert with the four reclassification criteria authorized in statute, and 2) authorizes IEP teams to determine appropriate measures of English proficiency which would be equivalent to an English-proficient peer with similar disabilities. But based on the above data showing significant disproportionality in the secondary grades it would appear that these authorizations are not effectively or consistently used.
• Insufficient use of assessment accommodations. Assessment accommodations, such as primary language support, English language reference materials, and the option for oral response in English are a few of the ways in which educators can get a more accurate picture of an EL’s abilities. Research suggests that overreliance on standardized tests to identify ELs with learning disabilities results in underidentification in the early elementary grades and overidentification in the subsequent grades. The use of accommodations is viewed as a critical part of the accurate identification of ELs for special education services, but as noted above, in 2009 only 1% California’s ELs were provided language accommodations on state assessments.
• Poorly designed and implemented referral strategies. In a 2015 report the Regional Educational Laboratory West (WestEd) identified poorly designed and implemented referral strategies as a major barrier to accurate identification and appropriate services for ELs. They note an absence of systematic referral processes for ELs in which, for example, educators know when and under which circumstances to refer, student study teams have protocols for review of multiple and extrinsic factors, and administrators have established processes for interpretation and translation for parents in special education proceedings. Another such issue, the makeup of IEP teams, was highlighted in a 2015 report by Policy Analysis for California Education (PACE), which noted that referral teams should include EL specialists and special education specialists who are trained to assess EL students.
• Lack of intervention strategies. Early intervention can reduce referrals for special education services, and strategies such as response to intervention (a multi-tiered structure of increasingly intensive and focused instruction, assessment, and intervention) are increasingly employed by schools. Some schools also use pre-referral strategies such as a child study team to make instructional modifications and provide supports before a student is referred for assessment. But research indicates that the absence of consistent intervention strategies remains an issue in the identification and instruction of ELs with disabilities.
• Inappropriate instructional practices. ELs with disabilities require specialized instruction in order to progress academically both prior to referral and after qualifying for services. But research indicates that educators have difficulty providing consistent, adequate services to ELs with disabilities, in part due to gaps in skills required to meet both sets of needs. Research also points to lack of consistent monitoring of student progress across EL and special education systems.

These and other topics, such as strategies for working with families and guidance on the development of IEPs, are required to be included in the manual proposed by this bill.

What works to address concerns about English learners and special education? In 2015 WestEd published a review of guidelines and protocols used by the 20 states with the largest populations of ELs, and identified five guiding principles states should have in place to meet the needs of EL students with disabilities:

• Have a clear policy statement that additional considerations will be used in placing EL students in special education programs
• Provide test accommodations for EL students
• Employ exit criteria for English language support programs for EL students in special education
• Assess EL students’ language and disability needs using a response to intervention approach
• Provide publicly available manuals to aid educators in identifying and supporting EL students who have learning disabilities

Other states provide guidance to educators. This bill requires the CDE to develop a manual to guide educators in evidence- based practices for supporting English learners who may have disabilities, and requires that in doing so the CDE review manuals produced by other states.

Five other states (Connecticut, Illinois, Michigan Minnesota, and Virginia) have produced extensive, publicly available manuals to aid educators in identifying and supporting ELs with disabilities. According to research from the WestEd Regional Educational Laboratory, these manuals include, to a greater or lesser extent:

• information on second language acquisition and progress
• guidance on assessments
• professional development programs for educators
• information on the role of culture/acculturation
• sample pre-referral or intervention program
• plan for continuous evaluation/systemic review
• laws and regulations related to the rights of ELs and students with disabilities
• guidance for working with families

Some resources on these topics exist in different forms. The California Special Education Local Plan Area administrators have produced a resource book on English learners and special education titled, “Meeting the Needs of English Learners with Disabilities.” San Diego Unified School District produces a manual titled, “CEP-EL: A Comprehensive Evaluation Process for English Learners” (see below). The Council of Chief State School Officers has produced guidance on the use of accommodations for English learners titled “How to Select, Administer, and Evaluate Use of Accommodations for Instruction and Assessment of English Language Learners with Disabilities.” As noted above, the CELDT guide provides guidance on reclassification of ELs with disabilities. And the U.S. Department of Education includes some information in its “English Learner Toolkit” (see below). In the 1997 the CDE produced a publication titled, “Guidelines for Language, Academic, and Special Education Services Required for Limited-English Proficient Students in California Public Schools, K-12” which covers a broader set of topics, but it is out-of-date and no longer available.

Federal government recommends that states provide guidance to school districts. In 2015 the U.S. Department of Education issued an English Learner Toolkit. The toolkit includes information on English learners with disabilities, and recommends:

• “States should create a comprehensive policy for ELs with exceptionalities…based on current research followed by extensive guidance to localities.”
• “States should consider developing policies that require and set parameters for communication and collaboration between EL and special education professionals at the point of entry to and exit from special education as well as during the monitoring process while students are being served in special education.”

SBAC accommodations for English learners. Research has established that test accommodations allow ELs to better demonstrate their true level of proficiency in academic content. For example, a 2010 study found that simplifying the language on standardized math test items – while not changing the math knowledge being assessed - made it easier for ELs to provide a more accurate assessment of their math skills. As noted above, however, 1% of ELs were provided accommodations on state assessments in 2009.

The new computer-based Smarter Balanced Assessment Consortium (SBAC) assessment offers new opportunities for educators to offer test accommodations for both English learners and students with disabilities. Accommodations are built into the computer-based system, and are easier for educators to access than the prior pencil-and-paper system. SBAC accommodations for ELs include stacked Spanish translations, glossaries provided in 10 languages and several dialects, as well as translated test directions in 19 languages. Accommodations for students with disabilities include Braille and closed captioning.

San Diego Unified School District provides guidance to educators. The San Diego Unified School District has taken affirmative steps to address the reportedly long-standing problem of the overidentification of English learners in special education in that district.

These reforms were prompted by two reviews of the district’s special education program. A 2007 study found that ELs were disproportionately identified, and that Latino ELs were found to be 70% more likely to be identified than their Latino non-EL peers. A 2009 study found patterns of earlier identification, placement in more restrictive settings, limited primary language assessments, and few extrinsic factors reflected in evaluations. This study noted a lack of systemic policies and procedures in this area.

In 2012 the district published a manual, titled “CEP-EL: A Comprehensive Evaluation Process for English Learners,” which provides guidance on best practices prior to and after a referral, including guidance on the assessment process. It includes an action plan, with numerous tools to aid educators, such as questionnaires, observation checklists, and skills rating scales. The district also provided professional development for educators on the content of the manual.

Special Education Task Force report. In 2015, California’s Statewide Task Force on Special Education (a joint effort between the CDE, the State Board of Education, and the Commission on Teacher Credentialing) released a report titled, “One System: Reforming Education to Serve ALL Students.” The Task Force was charged with identifying the reasons why students in special education are not more successful and what must be changed in policy and practice to change it. The Task Force did not directly address issues specific to the identification, assessment, and support of students with disabilities, but did comment: “Children with a disability who are also English language learners become caught between systems because there is not enough support for both intensive language and special education services. Ultimately, this dilemma forces an IEP team to make a ‘Sophie’s choice:’ in which area will a student receive support, and in which area not? Either option promises poor outcomes for the student.”

ESSA and a proposed new federal rule on disproportionality. The federal Every Student Succeeds Act (ESSA), signed into law in 2015, requires states to report on number and percentage of ELs 1) meeting state-determined long-term goals, disaggregated by disability, 2) attaining English proficiency, 3) meeting challenging state academic standards for 4 years after exiting, disaggregated by disability, and 4) who have not attained proficiency within 5 years of classification.

In addition, a proposed federal rule (now pending) would also standardize the methodology states must use to determine whether significant disproportionality based on race and ethnicity is occurring in the state and its LEAs, clarify requirements for the review and revision of policies, practices, and procedures when significant disproportionality is found, and require that LEAs identify and address the factors contributing to significant disproportionality as part of comprehensive coordinated early intervening services.

Related legislation. AB 2091 (Lopez) of this Session requires LEAs to provide parents with translated copies of a student’s IEP and related documents within 30 days of an IEP meeting, and requires that the documents be translated by a qualified interpreter.

AB 2350 (O’Donnell) of this Session prohibits ELs in middle and high school from being prevented from enrolling in core curriculum courses and courses required for graduation, requires that courses designed for long term English learners be offered for graduation credit, and requires the CDE to create a video-based professional development series on integrated and designated ELD.

Recommended amendments. Staff recommends the following amendments to this bill:

1. Clarify the terms “English learner” and “student with disabilities” to include students who may be identified as ELs, and to include students with low incidence disabilities.
2. Change the dates by which the manual and professional development plan must be completed.
3. Specify that the manual will include guidance on primary language assessments and primary language instruction and placement for students who are identified as requiring special education services.
4. Encourage, rather than require, certain design features of the manual.
5. Add to the list of agencies to which the professional development plan would be sent.
6. Other technical and clarifying changes.

REGISTERED SUPPORT / OPPOSITION:

Support

Association of California School Administrators

California Association for Bilingual Education

California State Council on Developmental Disabilities

Californians Together

Los Angeles Unified School District

Riverside County Superintendent of Schools

Special Education Local Plan Area Administrators of California

Opposition

None received

Analysis Prepared by: Tanya Lieberman / ED. / (916) 319-2087

SENATE COMMITTEE ON EDUCATION

Senator Carol Liu, Chair

2015 - 2016 Regular

Bill No:

Subject:

SUMMARY

This bill requires, by July 1, 2018, the California Department of Education (CDE) to develop a manual for the purpose of providing guidance to local educational agencies (LEA) on identifying, assessing, and supporting, English learners who may qualify for special education services.

BACKGROUND

Existing law:

1. Requires local educational agencies to actively and systematically seek out all individuals with exceptional needs, from birth to 21 years of age.

(Education code § 56300)

1. Requires the determination of a student’s primary language upon enrollment and assessment of the language skills of all students whose primary language is other than English. (EC § 52164.1)
2. Requires, under federal law, that an individualized education program (IEP) team, in the case of an English learner, consider the language needs of the student as such needs relate to his or her IEP. (34, CFR § 300.346)
3. Requires LEAs to take any action necessary to ensure that, in an IEP team meeting, the parent or guardian understands the proceeding, including arranging for an interpreter for parents or guardians with deafness or whose native language is a language other than English. (EC § 56341.5)
4. Requires proposed special education assessment plans to be provided to parents in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so. (EC § 56321)
5. Requires LEAs to give the parent or guardian a copy of the individualized education program, at no cost to the parent or guardian. (EC § 56341.5)
6. Defines “consent” in special education proceedings to include situations in which the parent or guardian has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or other mode of communication. (EC § 56021.1)
7. Prohibits, through federal law, a determination that a student is eligible for special education if the determining factor is limited English proficiency.

(34 CFR 300.309)

1. Requires, through federal law, the California Department of Education (CDE) to report annually to the federal government on the number of students with disabilities, including the number who have disabilities, and the incidence and duration of disciplinary actions by race, ethnicity, and limited English proficiency status. (34 CFR § 300.600)

ANALYSIS

This bill:

1. Requires CDE to develop a manual for the purpose of providing guidance to local educational agencies (LEAs) on identifying, assessing and supporting English learners who may qualify for special education services.
2. Specifies that the goal is to provide guidance for voluntary use by LEAs on evidence-based and promising practices for the identification, assessment and support of English learners who may have disabilities, and to promote collaboration as specified, in determining the most appropriate academic placements and services for these students.
3. Requires CDE to do all of the following in the development of the manual:
   1. Review manuals and other resources provided on this topic by the

specified public entities and organizations.

• 1. Establish and consult with stakeholder groups, comprised of experts and

practitioners in either special education, English learner education, or in both.

1. Requires the manual to include all of the following topics:
   1. Guidance for accurately identifying English learners who may have

disabilities, including on avoiding the over-identification and under-

identification of these students for special education services and in

different disability categories and in different grade spans.

• 1. Information on second language acquisition and progress, including

guidance on distinguishing between language acquisition and disabilities.

• 1. Information on the role of culture and acculturation, to the extent it is

related to the process of identifying English learner reclassification

process for English learners with disabilities.

• 1. Examples of pre-referral strategies, early interventions, and early

intervening strategies specifically addressing the needs of English

learners, as specified.

• 1. Examples of any plans or processes used by local educational agencies

for continuous evaluation and systemic review including guidance on

tracking effectiveness and sharing information between special education

and English learner programs within local educational agencies, to the

extent permitted under state and federal law.

• 1. Guidance on all of the following areas:
     1. Referral processes and use of assessments.
     2. Consideration of extrinsic factors, such as vision and health, in the

identification of students.

• • 1. Development of individualized education programs for English

learners.

• • 1. How to support the language and content learning needs of English

learners who may have disabilities.

• • 1. Placement or continued placement in bilingual programs and on

providing services and instruction in primary languages.

• • 1. Special education exit and English learner reclassification process

for English learners with disabilities.

• • 1. Working with families including meeting the needs of nonnative

English speaking parents, guardians, and educational rights

holders in special education proceedings.

• 1. State and federal law, regulations, and guidance related to the rights of

English learners and students with disabilities.

1. Requires that the manual be:
   • 1. Consistent with state and federal law, regulations, and guidance

regarding English learners and special education.

• • 1. Written for ease of use by educators. The department is

encouraged to incorporate graphic organizers and other helpful

features such as flowcharts, checklists, sample forms and case

examples.

1. Requires the California Department of Education to:
   1. Post the manual on its Internet Web site and on its professional

development Internet Web site.

• 1. Develop a plan with input from the stakeholder group, for dissemination of

the manual and providing professional development for staff at schoolsites

and administrators of local educational agencies on the content of the manual, as specified.

1. Requires that the plan be submitted to the state board, the Department of Finance, the Legislative Analyst’s Office, the California Collaborative for Educational Excellence, the Advisory Commission on Special Education, and the appropriate policy and fiscal committees of the Legislature on or before July 1, 2018.
2. Defines, for the purpose of this bill, the following terms:
   1. “English learners” includes pupils who have been classified as English

learners and those who may later be classified as English learners.

• 1. “Pupils with disabilities” includes pupils who have been or may be

identified as individuals with exceptional needs, as defined in section

56026 of the Education Code, including pupils who have been or may be

identified as having a low incidence disability, as defined in section

56020.5, or a severe disability, as defined in Section 56030.5

1. States the intent of the Legislature that these activities be paid for with federal funds.

STAFF COMMENTS

1. Need for the bill: According to the author, “the inappropriate identification of English learners for special education services is a long-standing problem, with serious consequences for student learning. Research indicates that this problem, first identified in the 1960’s, persists today. Students may mistakenly be identified as requiring special education services when their language proficiency is mistaken for a disability. Conversely, English learners may be prevented from receiving needed special education services when disabilities are mistaken for language learning needs.” This bill seeks to promote accurate identification of English learners who may qualify for special education services by requiring the California Department of Education (CDE) to provide evidence based guidance to educators in the form of a manual.
2. Identifying English learners for special education services at a higher rate.

According to the CDE, while 10% of California students qualify for special education services, 9.1% of English proficient students and 14.4% of English learners qualify for these services. This shows that English learners are identified for special education services at a higher rate than for non-English learners. Compared to other states, California has an above average percentage of English learners in special education and 35% of all English learners in special education in the country. The identification, assessment and instruction of English learners who may qualify for special education services is a complex process and inappropriate placements may cause a spike in rates. This bill seeks to assist educators to distinguish between language acquisition and disability. Part of the strategy to help educators improve in this area is sharing information on pre-referral and early intervention strategies; a process for continuous evaluation and systemic review; as well as providing information on the role of culture and acculturation in the process of identifying English learner reclassification for English learners with disabilities.

1. Related research. This bill implements recommendations from multiple reports on English learners and special education identification. It primarily draws from two reports issued in 2015, Identifying and Supporting English Learner Students with Learning Disabilities: Key Issues in the Literature and State Practice, by the Regional Educational Laboratory West (WestEd) and Improving the Opportunities and Outcomes of California’s Student Learning English released by Policy Analysis for Education (PACE). The following are key issues raised by these reports that are related to the provisions of the bill:
   1. Inability to distinguish between a language learning need and a disability. Educators often face challenges determining whether a student’s difficulty progressing academically is a result of a disability or a language barrier. For example, in the area of English language arts, teachers may confuse the signs of learning disabilities with the development of pronunciation, syntax, or semantic development. Educators may also be hesitant to refer a student with a possibility disability until their English proficiency improves. This is a key factor in both the over identification and under identification of English learners for special education services.
   2. Insufficient use of assessment accommodations. Assessment accommodations, such as primary language support, English language reference materials, and the option for oral response in English are a few of the ways in which educators can get more accurate picture of English learners’ abilities. Overreliance on standardized tests for English learners with disabilities results in under-identification in the early elementary grades and over-identification in subsequent grades.
   3. Poorly designed and implemented referral strategies. Poorly designed referral strategies are a major barrier for accurate identification and designating appropriate services. A systematic referral process is needed. This process would allow educators to know when and under which circumstances to refer, establish protocols for review of multiple factors and create a process for interpretation and translation for parents in special education proceedings. Referral teams should include English learner specialist and special education specialist who are trained to assess English learner students.
   4. Lack of intervention strategies. Early intervention can reduce referrals for special education services and strategies such as response to intervention are increasingly employed by schools. Some schools also use pre-referral strategies such as a child study team to make instructional modifications and provide supports before a student is referred for assessment.
   5. Inappropriate instructional practices. English learners with disabilities require specialized instruction in order to progress academically both prior to referral and after qualifying for services. However, educators have difficulty providing consistent, adequate services to English learners with disabilities, in part due to gaps in skills required to meet both sets of needs.

The guidance manual established by the provisions of this bill aims to address each of these points by incorporating the wide array of resources produced on this topic, bringing together a stakeholder group comprised of experts in both special education and English learner education to guide educators in appropriately addressing the needs of this unique student population.

1. Related legislation.

AB 2091 ( Lopez, 2016) would require local educational agencies to provide parents with a translated copy of an individualized education program (IEP) and other specified documents, upon request, and requires that the IEP and related documents be translated by a qualified translator. AB 2091 was heard by this Committee and approved by a vote of 8-0.

AB 1876 (Lopez, 2016) prohibits the California Department of Education from approving or renewing approval of a contractor or testing center to administer tests for a high school equivalency certificate unless the contractor or testing center provides the tests in English, Spanish, and Vietnamese, and provides that an examinee shall be permitted to take the test in any of these three languages. AB 1876 is set to be heard June 22, 2016.

SUPPORT

Association of California School Administrators

California Association for Bilingual Education

California Federation of Teachers

California School Boards Association

California State PTA

California Teachers Association

Californians Together

Disability Rights California

Public Counsel

Riverside County Superintendent of Schools

Santa Clara County Office of Education

State Superintendent of Public Instruction, Tom Torlakson

The Arc and United Cerebral Palsy California Collaboration

The Education Trust-West

The State Council on Developmental Disabilities

OPPOSITION

None received.

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 2785

Author:(O'Donnell)

As Amended Ver:April 27, 2016

Majority vote

SUMMARY: Requires the California Department of Education (CDE) to develop a manual providing guidance to local educational agencies (LEAs) on identifying and supporting English learners (ELs) with disabilities. Specifically, this bill:

1. Requires that, by July 1, 2018, the CDE develop a manual providing guidance to LEAs on identifying, assessing, and supporting English learners who may qualify for special education services.
2. States that the goal of the manual is to provide guidance, for voluntary use by LEAs and charter schools, on evidence-based and promising practices for the identification, assessment, and support of English learners who may have disabilities, and to promote a collaborative approach among general education teachers, special education teachers, school administrators, other personnel, and parents in determining the most appropriate academic placements and services for these students.
3. Requires that in developing the manual, the CDE review manuals and other resources produced on this topic by LEAs, special education administrators, other organizations, other states, and the federal government; and establish and consult with a stakeholder group comprised of experts and practitioners, and requires that these individuals have expertise or experience in either special education, English learner education, or both
4. Requires that the manual include:
5. Guidance for accurately identifying English learners who may have disabilities, including guidance on avoiding the over-identification and under-identification of these students for special education services and in different disability categories and grade spans
6. Information on second language acquisition and progress, including guidance on distinguishing between language acquisition and disabilities
7. Examples of prereferral strategies, early interventions, and early intervening strategies specifically addressing the needs of English learners
8. Guidance on referral processes
9. Guidance on the use of assessments, including the use of multiple measures as well as assessment accommodations for both language and disability
10. Guidance on the consideration of extrinsic factors in the identification of students
11. Guidance on the development and composition of individualized education program teams for English learners
12. Guidance on how to support the language and content learning needs of English learners who may have disabilities, including how to do so in the least restrictive environment
13. Guidance regarding placement or continued placement in bilingual programs and on providing services and instruction in primary languages
14. Guidance on special education exit and English learner reclassification processes
15. Information on the role of culture and acculturation, to the extent it is related to the process of identifying English learners for special education services
16. Guidance for working with families, including guidance on meeting the needs of non-native English speaking parents in special education proceedings
17. Examples of any plans or processes used by LEAs for continuous evaluation and systemic review, including guidance on tracking effectiveness and sharing information between special education and English learner programs within LEAs, to the extent permitted under state and federal law
18. Related state and federal law, regulations, and guidance
19. Requires that all guidance in the manual be consistent with state and federal law, regulations, and guidance regarding English learners and special education.
20. Requires that the manual be written for ease of use by educators. Encourages the CDE to incorporate graphic organizers and other helpful features such as flowcharts, checklists, sample forms, and case examples.
21. Requires the CDE to post the manual on its website.
22. Defines, for purposes of this act, the following terms as having the following meanings:
23. "English learners" includes students who have been classified as English learners and those who may later be classified as English learners
24. "Students with disabilities" includes students who have been or may be identified as individuals with exceptional needs, including those who have been or may be identified as having a low incidence disability or a severe disability
25. Requires that the CDE, with input from the stakeholder group, to develop a plan for dissemination of the manual and providing professional development for staff at school sites and administrators on the content of the manual. Requires that the plan address how the state and LEAs can collaborate in meeting both of these objectives.
26. Requires that this plan be submitted to the State Board of Education, the Department of Finance, the Legislative Analyst's Office, the California Collaborative for Educational Excellence, the Advisory Commission on Special Education, and the appropriate policy and fiscal committees of the Legislature on or before July 1, 2018.
27. States the intent of the Legislature that these activities be paid for with federal funds.

FISCAL EFFECT: According to the Assembly Appropriations Committee, administrative costs to CDE of approximately $315,000, over two years, to assist with writing and review of the manual and the plan. CDE indicates some activities can be absorbed within existing resources including, review of existing manuals (including manuals from other states) and convening four stakeholder meetings. The CDE position will need to have English learner expertise in order to assist with this work. There will be additional, unknown costs to distribute the manual pursuant to a plan, yet to be developed.

COMMENTS:

Need for the bill. The author states, "The inappropriate identification of English learners for special education services is a long-standing problem, with serious consequences for student learning.

"Research indicates that this problem, first identified in the 1960's, persists today. While overall 10% of California students qualify for special education services, 14.4% of English learners qualify for these services. California has an above average percentage of English learners in special education relative to other states.

"There is wide recognition this is a dual problem: the over-identification and under-identification of English learners for special education services. Students may be mistakenly identified as requiring special education services when their language learning needs are mistaken for a disability. Conversely, English learners may be prevented from receiving needed special education services when disabilities are mistaken for language learning needs. Both problems can result in inappropriate placements and services which hold students back from academic progress.

"Research indicates that at the heart of this problem are modifiable factors, such as a lack of understanding of language acquisition, unfamiliarity with best practices for serving English learners with disabilities, poorly designed and implemented referral processes, and lack of coordination between English learner and special education programs. The identification, assessment, and instruction of English learners who may qualify for special education services involves complex and interrelated processes, but no state guidance currently exists to guide educators in this area.

"AB 2785 directs the California Department of Education, in consultation with a group of experts and practitioners, to develop a manual to support educators on evidence-based practices for the identification, assessment, and instruction of English learners who have disabilities. Several other states have provided this kind of support to their educators, and it is supported by the federal government. There is broad acknowledgement that this kind of guidance would be a highly useful tool in serving these students."

Long-standing concerns about over/under identification of English learners for special education. The inappropriate identification of English learners for special education has been a concern since at least the 1960s, when the issue of disproportionate identification was first raised as an issue. Decades of research, litigation, and policy reform followed. As noted below, however, data indicate that identification, assessment, service problems have persisted.

California English learners identified at far higher rate than non-English learners; state has above average rate nationally. Research on English learners and special education identification in California shows that:

1. According to the CDE, while 10% of California students qualify for special education services, 9.1% of English proficient students and 14.4% of English learners qualify for these services. This indicates that ELs are identified for special education services at a rate that is 60% higher than for non-ELs.
2. According to the CDE, approximately 1% of English learners were provided test accommodations on the California Standards Tests in 2009. This rate declined from about 2% in 2006.
3. California has an above average percentage of English learners in special education compared to other states. Data reported by Office of Civil Rights indicate that in 2011-12 California identified 13.3% of English learners, compared to a national average rate of 11.9%, and that California enrolls 35% of all English learners in special education in the country.
4. Research indicates that, of California students identified for special education, English learners are overrepresented in certain disability categories, particularly intellectual disability, learning disabilities, and speech and language impairment.
5. Older research (2000) indicates that California ELs receiving the least language support were more likely to be placed in special education programs, and that students receiving all of their instruction in English were three times as likely to be identified for special education services than those receiving some primary language support.
6. Research suggests that before fifth grade California ELs are under-identified, and are over-identified in the secondary grades.

The key issues: language, intervention, referral, assessment, instruction. What are the causes of this long-standing problem? The research points to some key issues which are addressed by this bill. They include the inability to distinguish between a language learning need and a disability, insufficient use of assessment accommodations, poorly designed and implemented referral strategies, lack of intervention strategies, and inappropriate instructional practices.

Analysis Prepared by: Tanya Lieberman / ED. / (916) 319-2087 FN: 0003193

Date of Hearing: May 11, 2016

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 2785

Author:(O'Donnell) – As Amended Ver:April 27, 2016

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill requires the California Department of Education (CDE), by July 1, 2018, to develop a manual providing guidance to local educational agencies (LEAs) on identifying, assessing, and supporting English learners who may qualify for special education services. Specifically, this bill:

1. Provides that the goal of the manual is to provide guidance, for voluntary use by LEAs, on evidence-based and promising practices for the identification, assessment, and support of English learners who may have disabilities.
2. Requires the CDE to review existing manuals developed by LEAs, organizations or other states, as a reference for developing California manuals. Also requires CDE to consult a stakeholder group.
3. Sets forth requirements for the content of the manuals, including: guidance for accurately identifying ELs with disabilities, information on second language acquisition and process, examples of early intervention and strategies, guidance on referral processes, use of assessments, and EL reclassification processes for students with disabilities.
4. Requires CDE to post the manual on the department website and develop a plan for dissemination to schoolsites and administrators. Requires this plan to be submitted to the State Board of Education (SBE), the Department of Finance, the Legislative Analyst’s Office, the California Collaborative for Educational Excellence, the Advisory Commission on Special Education, and the appropriate policy and fiscal committees of the Legislature on or before July 1, 2018.
5. Expresses legislative intent that the activities in this bill be funded with federal funds, to the extent possible.

FISCAL EFFECT:

Administrative costs to CDE of approximately $315,000, over two years, to assist with writing and review of the manual and the plan. CDE indicates some activities can be absorbed within existing resources including, review of existing manuals (including manuals from other states) and convening four stakeholder meetings. The CDE position will need to have English learner expertise in order to assist with this work. There will be additional, unknown costs to distribute the manual pursuant to a plan, yet to be developed.

COMMENTS:

1. Purpose. According to the author, the inappropriate identification of English learners for special education services is a long-standing problem, with serious consequences for student learning. Research indicates that this problem, first identified in the 1960’s, persists today. For example, while overall 10% of California students qualify for special education services, 14.4% of English learners qualify for these services. California has an above average percentage of English learners in special education relative to other states, and 35% of all English learners in special education in the country. Research also suggests that problems such as lack of understanding of language acquisition, unfamiliarity with best practices for serving English learners with disabilities, poorly designed and implemented referral processes, and lack of coordination between English learner and special education programs are things that can be changed with time and resources. Currently, there is no state guidance for educators in this area. This bill aims to address this issue by providing guidance manuals. Several other states have provided this kind of support to their educators, and it is supported by the federal government. There is broad acknowledgement that this kind of guidance would be a highly useful tool in serving these students

Analysis Prepared by: Misty Feusahrens / APPR. / (916) 319-2081

Date of Hearing: April 20, 2016

ASSEMBLY COMMITTEE ON EDUCATION

Patrick O'Donnell, Chair

ABPCA Bill Id:AB 2785 (

Author:O'Donnell) – As Amended Ver:April 7, 2016

SUBJECT: Special education: English learners: manual

SUMMARY: Requires the California Department of Education (CDE) to develop a manual providing guidance to local educational agencies (LEAs) on identifying and supporting English learners (ELs) with disabilities. Specifically, this bill:

1. Requires, on or before July 1, 2018, the CDE to develop a manual providing guidance to LEAs on identifying and supporting ELs who qualify for special education services.
2. States that the goal of the manual is to provide state guidance to educators on the identification and support of ELs with disabilities and to promote a collaborative approach among teachers, school administrators, other personnel, and parents in determining the most appropriate academic placements and supports for these pupils.
3. Requires CDE, in developing the manual, to review manuals produced on this topic by other states, and consult with a stakeholder group comprised of experts and practitioners who have expertise or experience in either special education, English learner education, or both.
4. Requires the manual to include all of the following topics:
5. guidance for accurately identifying English learners with disabilities, including guidance on avoiding the over-identification and under-identification of these students
6. information on second language acquisition and progress
7. a sample prereferral or intervention program
8. guidance on referral processes
9. guidance on the use of assessments, including the use of multiple measures as well as assessment accommodations for both language and disability
10. guidance on the development of individualized education programs for English learners
11. guidance on how to support the language and content learning needs of English learners with disabilities, including how to do so in inclusive settings
12. information on the role of culture and acculturation
13. guidance for working with families, including guidance on meeting the needs of nonnative English speakers in special education proceedings
14. a sample plan for continuous evaluation and systemic review, including guidance on tracking effectiveness and sharing information between special education and English learner programs within LEAs, to the extent permitted under state and federal law
15. laws and regulations related to the rights of English learners and pupils with disabilities.
16. Requires that the manual be written for ease of use by educators and that it include graphic organizers and other helpful features such as flowcharts, checklists, sample forms, and case examples.
17. Requires the CDE, with input from the stakeholder group, to develop a plan for dissemination of the manual and providing professional development on the content of the manual. Requires that the plan address how LEAs can collaborate with the CDE in meeting both of these objectives.
18. Requires that the plan be submitted to the State Board of Education (SBE), the Department of Finance, the Legislative Analyst’s Office, and the appropriate policy and fiscal committees of the Legislature on or before July 1, 2018.
19. States the intent of the Legislature that this project be funded with federal funds, to the extent permissible.

EXISTING LAW:

1. Federal law prohibits a determination that a student is eligible for special education if the determining factor is limited English proficiency.
2. Federal law requires that an individualized education program (IEP) team, in the case of an English learner, consider the language needs of the student as such needs relate to his or her IEP.
3. Federal law requires the CDE to report annually to the federal government on the number of students with disabilities, including the number who have disabilities, and the incidence and duration of disciplinary actions by race, ethnicity, and limited English proficiency status.
4. Federal law authorizes state agencies to use the administrative portion of federal special education funds for, among other things, providing training to personnel in meeting the needs of English learners, and working with families of English learners, in order fto “ensure appropriate identification of students who may be eligible for special education services, and to prevent the misidentification, in appropriate overidentification, or underidentification of children as having a disability, especially minority and limited English proficient children.”
5. Federal law authorizes federal grants to states for the purpose of ensuring appropriate placements and services for all students and to reduce disproportionality in eligibility, placement, and disciplinary actions for minority and limited English proficient students.
6. State and federal law require LEAs to take any action necessary to ensure that in an IEP team meeting the parent or guardian understands the proceedings at a meeting, including arranging for an interpreter for parents or guardians whose native language is a language other than English.
7. State and federal law defines “consent” in special education proceedings as situations in which the parent or guardian has been fully informed of all information relevant to the activity for which consent is sought, in his or her native language, or other mode of communication. State and federal law also require that proposed assessment plans be provided to parents “in the native language of the parent or other mode of communication used by the parent, unless it is clearly not feasible to do so.”
8. Title VI of the federal Civil Rights Act of 1964 prohibits recipients of federal financial assistance, including school districts, from discriminating on the basis of race, color, or national origin. Title VI’s prohibition on national origin discrimination requires school districts to take “affirmative steps” to address language barriers so that EL students may participate meaningfully in schools’ educational programs.
9. The federal Every Student Succeeds Act (ESSA), signed into law in 2015, requires states to report on number and percentage of ELs 1) meeting state-determined long-term goals, disaggregated by disability, 2) attaining English proficiency, 3) meeting challenging state academic standards for 4 years after exiting, disaggregated by disability, and 4) who have not attained proficiency within 5 years of classification

FISCAL EFFECT: Unknown

COMMENTS:

Need for the bill. The author states, “The inappropriate identification of English learners for special education services is a long-standing problem, with serious consequences for student learning.

Research indicates that this problem, first identified in the 1960’s, persists today. For example, while overall 10% of California students qualify for special education services, 14.4% of English learners qualify for these services. California has an above average percentage of English learners in special education relative to other states, and 35% of all English learners in special education in the country.

There is wide recognition this is a dual problem: the over-identification and under-identification of English learners for special education services. Students may be mistakenly identified as requiring special education services when their language learning needs are mistaken for a disability. Conversely, English learners may be prevented from receiving needed special education services when disabilities are mistaken for language learning needs. Both problems can result in inappropriate placements and services which hold students back from academic progress.

Research indicates that at the heart of this problem are modifiable factors, such as a lack of understanding of language acquisition, unfamiliarity with best practices for serving English learners with disabilities, poorly designed and implemented referral processes, and lack of coordination between English learner and special education programs.

The identification, assessment, and instruction of English learners who may qualify for special education services involves complex and interrelated processes, but no state guidance currently exists to guide educators in this area.

AB 2785 directs the California Department of Education, in consultation with a group of experts and practitioners, to develop a manual to support educators on evidence-based practices for the identification, assessment, and instruction of English learners who have disabilities. Several other states have provided this kind of support to their educators, and it is supported by the federal government. There is broad acknowledgement that this kind of guidance would be a highly useful tool in serving these students.”

Long-standing concerns about over/under identification of English learners for special education. The inappropriate identification of English learners for special education has been a concern since at least the 1960’s. Below is an attempt at a summary of relevant research, litigation, and policy related to this issue:

1960’s: An article (Dunn, 1968) questioning the high rate of students of color and English learners in special education classes sparked a civil rights debate about disproportionate enrollment in special education. Research on the demographics of special education enrollment in Riverside, California, begun in the 1960’s and ultimately published in 1973 found that black and Spanish-surnamed children were overidentified for special education. It found that among children scoring at low levels on IQ tests, Spanish-surnamed and low income students were more likely to be placed in special classes, and that 81% of students placed in special classes never returned to mainstream programs.

1970’s: In the 1970 Diana v. California State Board of Education case, the court reviewed the case of nine Mexican American students placed in classes for “mentally retarded” students on the basis of I.Q. scores. After being retested bilingually, the students’ scores no longer fell within the disabled range. The case was settled out of court, and the settlement required testing in students’ home language in the assessment process. Also in 1970 the U.S. Office of Civil Rights issued a memorandum stating that school districts “must not assign national origin, minority group students to classes for the mentally retarded on the basis of criteria which essentially measure or evaluate English language skills.”

1980’s: The U.S. Department of Education Office of Civil Rights (OCR) began to produce estimates of the extent and distribution of disproportionality in special education, which was found to be consistent over time. In response to the 1974 Lau v. Nichols Supreme Court decision, bilingual programs grew in number. According to a report published by the U.S. Department of Education, “in an almost complete turnaround from the days in which discriminatory overrepresentation of minority language youngsters in special education classes was the issue, there emerged a concern that minority language youngsters who also needed special education were not being appropriately screened or placed.”

1990’s: The federal IDEA reauthorization of 1997 required that states collect data for the purpose of monitoring and reducing disproportionality in special education, and as appropriate provide for the revision of policies, procedures and practices used in such identification. Proposition 227 of 1998 dramatically reduced the number of bilingual education programs operating in California schools.

2000’s: The federal IDEA reauthorization of 2004 expanded requirements for the monitoring of disproportionality, requiring that states have policies and procedures in place to prevent inappropriate identification by race or ethnicity, and requiring LEAs with significant disproportionality to devote the maximum amount of Part B funds allowable (15%) to early intervening programs. Disproportionality research began to focus on the forces that shape and maintain disproportionate representation.

2010’s: The 2015 federal Every Student Succeeds Act (ESSA) included new requirements to report on number and percentage of ELs, disaggregated by disability, who meet state-determined long-term goals and state academic standards, for 4 years after being reclassified. In 2015 the U.S. Department of Education also called on states to create guidance on English learners and special education for school districts (see below). A proposed federal rule (now pending) would also standardize the methodology states must use to determine whether significant disproportionality based on race and ethnicity is occurring in the state and its LEAs, and require that LEAs identify and address the factors contributing to significant disproportionality. An initiative on the November, 2016 ballot proposes to repeal parts of Proposition 227, expanding bilingual program options for students.

California English learners identified at far higher rate than non-English learners; state has above average rate nationally. Research on English learners and special education identification in California shows that:

• According to the CDE, while 10% of California students qualify for special education services, 9.1% of English proficient students and 14.4% of English learners qualify for these services. This indicates that ELs are identified for special education services at a rate that is 60% higher than for non-ELs.
• According to the CDE, approximately 1% of English learners were provided test accommodations on the California Standards Tests in 2009. This rate declined from about 2% in 2006.
• California has an above average percentage of English learners in special education compared to other states. Data reported by OCR indicate that in 2011-12 California identified 13.3% of English learners, compared to a national average rate of 11.9%. OCR data also show that California enrolls 35% of all English learners in special education in the country.
• Research indicates that, of California students identified for special education, English learners are overrepresented in certain disability categories, particularly intellectual disability, learning disabilities, and speech and language impairment.
• Older research (2000) indicates that California ELs receiving the least language support were more likely to be placed in special education programs, and that students receiving all of their instruction in English were three times as likely to be identified for special education services than those receiving some primary language support.
• Research suggests that before fifth grade California ELs are underidentified, and are overidentified in the secondary grades.

The key issues: language, intervention, referral, assessment, instruction. What are the causes of this long-standing problem? The research points to some key issues, most significantly:

• Inability to distinguish between a language learning need and a disability. Educators often face challenges determining whether a student’s difficulty progressing academically is a result of a disability or a language barrier. For example, in the area of English language arts, teachers may confuse the signs of learning disabilities with the development of pronunciation, syntax, or semantic development. Educators may also be hesitant to refer a student with a possible disability until their English proficiency improves. Research has identified this challenge as a key factor in both the overidentification and underidentification of English learners for special education services.
• Insufficient use of assessment accommodations. Assessment accommodations, such as primary language support, English language reference materials, and the option for oral response in English are a few of the ways in which educators can get a more accurate picture of an ELs abilities. Research suggests that overreliance on standardized tests to identify ELs with learning disabilities results in underidentification in the early elementary grades and overidentification in the subsequent grades. The use of accommodations is viewed as a critical part of the accurate identification of ELs for special education services, but as noted above, in 2009 only 1% California’s ELs were provided language accommodations on state assessments.
• Poorly designed and implemented referral strategies. In a 2015 report the Regional Educational Laboratory West (WestEd) identified poorly designed and implemented referral strategies as a major barrier to accurate identification and appropriate services for ELs. They note an absence of systematic referral processes for ELs in which, for example, educators know when and under which circumstances to refer, student study teams have protocols for review of multiple and extrinsic factors, and administrators have established processes for interpretation and translation for parents in special education proceedings. Another such issue, the makeup of IEP teams, was highlighted in a 2015 report by Policy Analysis for California Education (PACE), which noted that referral teams should include EL specialists and special education specialists who are trained to assess EL students.
• Lack of intervention strategies. Early intervention can reduce referrals for special education services, and strategies such as response to intervention (a multi-tiered structure of increasingly intensive and focused instruction, assessment, and intervention) are increasingly employed by schools. Some schools also use pre-referral strategies such as a child study team to make instructional modifications and provide supports before a student is referred for assessment. But research indicates that the absence of consistent intervention strategies remains an issue in the identification and instruction of ELs with disabilities.
• Inappropriate instructional practices. ELs with disabilities require specialized instruction in order to progress academically both prior to referral and after qualifying for services. But research indicates that educators have difficulty providing consistent, adequate services to ELs with disabilities, in part due to gaps in skills required to meet both sets of needs. Research also points to lack of consistent monitoring of student progress across EL and special education systems.

These and other topics, such as strategies for working with families and guidance on the development of IEPs, are required to be included in the manual proposed by this bill.

What works to address concerns about English learners and special education? In 2015 WestEd published a review of guidelines and protocols used by the 20 states with the largest populations of ELs, and identified five guiding principles states should have in place to meet the needs of EL students with disabilities:

• Have a clear policy statement that additional considerations will be used in placing EL students in special education programs
• Provide test accommodations for EL students
• Employ exit criteria for English language support programs for EL students in special education
• Assess EL students’ language and disability needs using a response to intervention approach
• Provide publicly available manuals to aid educators in identifying and supporting EL students who have learning disabilities

Other states provide guidance to educators. This bill requires the CDE to develop a manual to guide educators in evidence- based practices for supporting English learners who may have disabilities, and requires that in doing so the CDE review manuals produced by other states.

Five other states (Connecticut, Illinois, Michigan Minnesota, and Virginia) have produced extensive, publicly available manuals to aid educators in identifying and supporting ELs with disabilities. According to research from the WestEd Regional Educational Laboratory, these manuals include, to a greater or lesser extent:

• information on second language acquisition and progress
• guidance on assessments
• professional development programs for educators
• information on the role of culture/acculturation
• sample pre-referral or intervention program
• plan for continuous evaluation/systemic review
• laws and regulations related to the rights of ELs and students with disabilities
• guidance for working with families

Some resources on these topics exist in different forms. The California Special Education Local Plan Area administrators have produced a resource book on English learners and special education titled, “Meeting the Needs of English Learners with Disabilities.” San Diego Unified School District produces a manual titled, “CEP-EL: A Comprehensive Evaluation Process for English Learners” (see below). The Council of Chief State School Officers has produced guidance on the use of accommodations for English learners titled “How to Select, Administer, and Evaluate Use of Accommodations for Instruction and Assessment of English Language Learners with Disabilities.” And the U.S. Department of Education includes some information in its “English Learner Toolkit” (see below). In the 1997 the CDE produced a publication titled, “Guidelines for Language, Academic, and Special Education Services Required for Limited-English Proficient Students in California Public Schools, K-12” which covers a broader set of topics, but it is out-of-date and no longer available.

Federal government recommends that states provide guidance to school districts. In 2015 the U.S. Department of Education issued an English Learner Toolkit. The toolkit includes information on English learners with disabilities, and recommends:

• “States should create a comprehensive policy for ELs with exceptionalities…based on current research followed by extensive guidance to localities.”
• “States should consider developing policies that require and set parameters for communication and collaboration between EL and special education professionals at the point of entry to and exit from special education as well as during the monitoring process while students are being served in special education.”

SBAC accommodations for English learners. Research has established that test accommodations allow ELs to better demonstrate their true level of proficiency in academic content. For example, a 2010 study found that simplifying the language on standardized math test items – while not changing the math knowledge being assessed - made it easier for ELs to provide a more accurate assessment of their math skills. As noted above, however, 1% of ELs were provided accommodations on state assessments in 2009.

The new computer-based Smarter Balanced Assessment Consortium (SBAC) assessment offers new opportunities for educators to offer test accommodations for both English learners and students with disabilities. Accommodations are built into the computer-based system, and are easier for educators to access than the prior pencil-and-paper system. SBAC accommodations for ELs include stacked Spanish translations, glossaries provided in 10 languages and several dialects, as well as translated test directions in 19 languages. Accommodations for students with disabilities include Braille and closed captioning.

San Diego Unified School District provides guidance to educators. The San Diego Unified School District has taken affirmative steps to address the reportedly long-standing problem of the overidentification of English learners in special education in that district.

These reforms were prompted by two reviews of the district’s special education program. A 2007 study found that ELs were disproportionately identified, and that Latino ELs were found to be 70% more likely to be identified than their Latino non-EL peers. A 2009 study found patterns of earlier identification, placement in more restrictive settings, limited primary language assessments, and few extrinsic factors reflected in evaluations. This study noted a lack of systemic policies and procedures in this area.

In 2012 the district published a manual, titled “CEP-EL: A Comprehensive Evaluation Process for English Learners,” which provides guidance on best practices prior to and after a referral, including guidance on the assessment process. It includes an action plan, with numerous tools to aid educators, such as questionnaires, observation checklists, and skills rating scales. The district also provided professional development for educators on the content of the manual.

Special Education Task Force report. In 2015, California’s Statewide Task Force on Special Education (a joint effort between the CDE, the State Board of Education, and the Commission on Teacher Credentialing) released a report titled, “One System: Reforming Education to Serve ALL Students.” The Task Force was charged with identifying the reasons why students in special education are not more successful and what must be changed in policy and practice to change it. The Task Force did not directly address issues specific to the identification, assessment, and support of students with disabilities, but did comment: “Children with a disability who are also English language learners become caught between systems because there is not enough support for both intensive language and special education services. Ultimately, this dilemma forces an IEP team to make a ‘Sophie’s choice:’ in which area will a student receive support, and in which area not? Either option promises poor outcomes for the student.”

ESSA and a proposed new federal rule on disproportionality. The federal Every Student Succeeds Act (ESSA), signed into law in 2015, requires states to report on number and percentage of ELs 1) meeting state-determined long-term goals, disaggregated by disability, 2) attaining English proficiency, 3) meeting challenging state academic standards for 4 years after exiting, disaggregated by disability, and 4) who have not attained proficiency within 5 years of classification.

In addition, a proposed federal rule (now pending) would also standardize the methodology states must use to determine whether significant disproportionality based on race and ethnicity is occurring in the state and its LEAs, clarify requirements for the review and revision of policies, practices, and procedures when significant disproportionality is found, and require that LEAs identify and address the factors contributing to significant disproportionality as part of comprehensive coordinated early intervening services.

Related legislation. AB 2091 (Lopez) of this Session requires LEAs to provide parents with translated copies of a student’s IEP and related documents within 30 days of an IEP meeting, and requires that the documents be translated by a qualified interpreter.

AB 2350 (O’Donnell) of this Session prohibits ELs in middle and high school from being prevented from enrolling in core curriculum courses and courses required for graduation, requires that courses designed for long term English learners be offered for graduation credit, and requires the CDE to create a video-based professional development series on integrated and designated ELD.

Recommended amendments. Staff recommends the following amendments to this bill:

1. Clarify the terms “English learner” and “student with disabilities” to include students who may be identified as ELs, and to include students with low incidence disabilities.
2. Change the dates by which the manual and professional development plan must be completed.
3. Specify that the manual will include guidance on primary language assessments and primary language instruction and placement for students who are identified as requiring special education services.
4. Encourage, rather than require, certain design features of the manual.
5. Add to the list of agencies to which the professional development plan would be sent.
6. Other technical and clarifying changes.

REGISTERED SUPPORT / OPPOSITION:

Support

Association of California School Administrators

California Association for Bilingual Education

California State Council on Developmental Disabilities

Californians Together

Los Angeles Unified School District

Riverside County Superintendent of Schools

Special Education Local Plan Area Administrators of California

Opposition

None received

Analysis Prepared by: Tanya Lieberman / ED. / (916) 319-2087