Legislative Update: Legislature Addresses Gifted And Talented Program, Indirect Cost Rates, Educational Placement Of Foster Children, And Paid Leaves of Absence

KMTG is continuing our series reviewing new legislation.  Unless noted otherwise, the new laws take effect January 1, 2013.

Gifted & Talented Program—AB 2491

Current law evidences the Legislature’s intent to improve programs for gifted and talented pupils and ensure pupils from varying cultural and economically disadvantaged backgrounds are provided with full participation in the gifted and talented education (“GATE”) programs.  The State Board of Education must review criteria for the programs that school districts propose for gifted and talented students.

AB 2491 amends section 52203 of the Education Code and requires the State Board of Education to “adopt a standard for pupil identification to ensure the identification procedures of an applicant school district provide economically disadvantaged pupils and pupils of varying cultural backgrounds with full participation in [GATE] programs.”  

Education Finance Indirect Cost Rates—AB 2435

The State Board of Education is currently required to direct the allocation and apportionment of federal funds to school districts and other agencies that receive federal funds.  AB 2435 adds sections 12000 and 33338 to the Education Code and requires that until January 1, 2016, the State Department of Education or any other California “agency that administers a grant or allocation of federal funds to a school district” must allow an indirect cost rate “that is not less than the indirect cost rate established by the department for each school district, unless federal law requires a lower indirect cost rate for school districts that receive federal funds.”

Foster Children & Special Education—SB 121

Currently, a pupil who is placed in a foster family home or a licensed children’s institution must attend a program operated by the local educational agency unless the pupil has an individualized education program requiring placement elsewhere, he or she is entitled to remain in his or her school of origin, or the pupil’s parent, guardian, or other person who holds the right to make educational decisions for the pupil determines that the pupil’s best interest is served by being placed in another educational program.

SB 121 amends Education Code sections 48853, 56155.7, 56342.1, and 56366.9.  The new law will require that if a parent, guardian, or other person who holds the right to make educational decisions for a pupil in a licensed children’s institution or foster family home determines that the pupil’s best interests will be served by placing the pupil in a program other than his or her school of origin or the placement required by an individualized education program, the parent, guardian, or other person making the educational decisions for the pupil must provide the local educational agency with a written statement that he or she has made that determination regarding the pupil’s best interests.  The written statement must include a declaration that (1) the pupil has the right to attend a regular public school in the least restrictive environment, (2) the alternate special education program, if applicable, is a special education program, (3) the decision to unilaterally remove the pupil from regular public school may not be financed by the local educational agency, and (4) that any attempt to seek reimbursement for the alternate program may be at the expense of the person holding the right to make educational decisions for the pupil. 

Additionally, SB 121 provides that a local educational agency shall not refer an individual with exceptional needs that resides in a foster family home or a licensed children’s institution to a nonpublic, nonsectarian school unless the pupil’s individualized education program specifies that the placement is appropriate.  Existing law also provides that if an individual with exceptional needs who resides in a foster family home or a licensed children’s institution is placed in a nonpublic, nonsectarian school, the local educational agency that made the placement must conduct an annual evaluation as part of the individualized education program process regarding “whether the placement is the least restrictive environment.”  The local educational agency must not refer or place an individual with exceptional needs in a nonpublic, nonsectarian school unless the pupil’s individualized education program specifies that the placement is appropriate.

SB 121 also provides that a licensed children’s institution may not place a pupil in or refer a pupil to a nonpublic, nonsectarian school.

Educational Placement Of Foster Children—SB 1568

SB 1568 also addresses the educational placement of foster children.  Current law provides that a local educational agency that serves a foster child must allow the foster child to continue his or her education in the school of origin for the duration of the court’s jurisdiction over the child.  A local educational agency must allow a foster child to continue in the school of origin throughout the duration of an academic school year if the court’s jurisdiction is terminated before the end of the school year. 

SB 1568 amends Education Code section 48853.5 and requires a local educational agency to allow a former foster child to continue his or her education in the school of origin through graduation if the court’s jurisdiction over the child is terminated while the child is in high school.  However, if the court’s jurisdiction is terminated before the end of the academic year for a foster child who is in kindergarten or grades one through eight, the child is only allowed to continue his or her education in the school of origin through the end of the academic year.  A school district is not required to provide transportation to a former foster child if his or her individualized education program “does not require transportation as a related service and who changes residence but remains in his or her school of origin pursuant to this paragraph, unless the individualized education program team determines that transportation is a necessary related service.”

Paid Leaves Of Absence To Participate In Union Activities- AB 1203

The Legislature recently amended Education Code sections 45210 and 88210 to allow for paid leave for unelected classified school district and community college district employees who want to participate in certain union activities.  Under current law, a governing board of a school district or community college district must grant a classified employee a leave of absence without loss of compensation to allow the employee to serve as an elected officer for a local public employee organization or a statewide or national public employee organization with which the local organization is affiliated.  The employee organization must reimburse the district for all compensation paid by the district to the employee on account of leave. 

AB 1203 amends sections 45210 and 88210 to expand leave privileges to unelected classified employees.  AB 1203 provides that if a local school district or community college district public employee organization, or a statewide or national public employee organization that is affiliated with the local organization, makes a leave request to the governing board of a school district or community college district, the district must “grant a leave of absence, without loss of compensation, to a reasonable number of unelected classified employees for the purpose of enabling an employee to attend important organizational activities authorized by the public employee organization.”  The employee organization must “provide reasonable notification to the employer requesting a leave of absence without loss of compensation.”  AB 1203 does not change the requirement that the employee organization must reimburse the district for the compensation paid by the district to the employee on account of leave.

In accordance with existing law, the compensation paid by the district during leave must include retirement fund contributions.  The employee will earn full service credit during the leave of absence but the employee must pay member contributions.  The maximum amount of service credit that may be earned for such leave shall not exceed 12 years. 

The law as amended provides that sections 45210 and 88210 do “not apply to an employee who is subject to a collective bargaining agreement that expressly provides for a leave of absence without loss of compensation for participation in authorized activities as an elected officer or an unelected member of the public employee organization.”

What This Means To You

Board policies and administrative regulations should be reviewed to ensure compliance with the newest changes in the law.  School administration and staff should be updated as to any changes so that the appropriate policies are consistently followed.  KMTG attorneys are available to assist in review and revision of Board policies and regulations.

Questions

If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Christian M. Keiner or Meghan Covert Russell | 916.321.4500

 

Topics:  Foster Children, GATE Programs, Leave of Absence, Special Education, Unions

Published In: Administrative Agency Updates, Education Updates, Elections & Politics Updates, Family Law Updates, Labor & Employment Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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