BILL NUMBER: AB 661INTRODUCED BILL TEXT INTRODUCED BY Assembly Member Torlakson FEBRUARY 25, 2009 An act to add Sections 56836.16 and 56836.161 to the Education Code, relating to special education, making an appropriation therefor, and declaring the urgency thereof, to take effect immediately. LEGISLATIVE COUNSEL'S DIGEST AB 661, as introduced, Torlakson. Special education: behavioral intervention plans: mandate claim: funding. (1) Existing law requires the Superintendent of Public Instruction, on or before September 1, 1992, to develop, and the State Board of Education to adopt, regulations, as specified, governing the use of behavioral interventions for individuals with exceptional needs receiving special education and related services. Existing law prescribes the calculations to be made to determine the amount of General Fund moneys to allocate to each special education local plan area. This bill would require the Superintendent to perform various calculations to increase the amount of funding per unit of average daily attendance for each special education local plan area, as specified. The bill would appropriate $65,000,000 from the General Fund to the Superintendent in augmentation of a specified item of the Budget Act of 2009 for purposes of providing that increased funding. The bill also would appropriate $10,000,000 from the General Fund to the Superintendent for allocation on a one-time basis to county offices of education and special education local plan areas, as specified. The bill would direct that $85,000,000 be appropriated from the General Fund on a one-time basis in each of the 2011-12 to 2016-17 fiscal years, inclusive, except as provided, to the Superintendent for allocation to school districts on a per-pupil basis. The Superintendent would be required to use specified calculations to compute the allocation for each school district. The bill would deem the funding described in this paragraph as payments in full satisfaction of, and in lieu of, any reimbursable mandate claims resulting from the statement of decision of the Commission on State Mandates regarding the Behavioral Intervention Plans Mandated Cost Test Claim. (2) This bill would declare that it is to take effect immediately as an urgency statute. Vote: 2/3. Appropriation: yes. Fiscal committee: yes. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. The Legislature finds and declares that it is in the state's interest that this act be enacted immediately to provide funding for positive behavioral intervention plans for special education pupils pursuant to Chapter 959 of the Statutes of 1990 in order to resolve a contested state mandate issue of 14-year standing. The Legislature anticipates that the Governor will request the enactment of this act prior to the enactment of the Budget Act of 2009. SEC. 2. Section 56836.16 is added to the Education Code, to read: 56836.16. (a) The Superintendent shall determine the statewide total average daily attendance used for the purposes of Section 56836.08 for the 2008-09 fiscal year. For the purposes of this calculation, the 2008-09 second principal average daily attendance for the court, community school, and special education programs served by the Los Angeles County Juvenile Court and Community School/Division of Alternative Education Special Education Local Plan Area shall be used in lieu of the average daily attendance used for that agency for the purposes of Section 56836.08. (b) The Superintendent shall divide sixty-five million dollars ($65,000,000), by the amount determined pursuant to subdivision (a). (c) For each special education local plan area, the Superintendent shall permanently increase the amount per unit of average daily attendance determined pursuant to subdivision (b) of Section 56836.08 for the 2009-10 fiscal year by the quotient determined pursuant to subdivision (b). This increase shall be effective beginning in the 2009-10 fiscal year. (d) Notwithstanding subdivision (c), for the Los Angeles County Juvenile Court and Community School/Division of Alternative Education Special Education Local Plan Area, the Superintendent shall permanently increase the amount per unit of average daily attendance determined pursuant to subdivision (b) of Section 56836.08 by the ratio of the amount determined pursuant to subdivision (b) to the statewide target per unit of average daily attendance determined pursuant to Section 56836.11 for the 2008-09 fiscal year. This increase shall be effective beginning in the 2009-10 fiscal year. (e) The Superintendent shall increase the statewide target per unit of average daily attendance determined pursuant to Section 56836.11 for the 2009-10 fiscal year by the amount determined pursuant to subdivision (b). (f) The funding provided pursuant to subdivisions (a) to (e), inclusive, and the funding provided pursuant to subdivisions (a) and (b) of Section 56836.161 shall be deemed as payments in full satisfaction of, and in lieu of, any reimbursable mandate claims resulting from the statement of decision of the Commission on State Mandates regarding the Behavioral Intervention Plans Mandated Cost Test Claim (CSM 4464). By providing this funding, the state does not concede the existence of any unfunded reimbursable mandate with regard to Section 56523 and its implementing regulations, including subdivisions (c), (d), (e), (f), and (aa) of Section 3001 and Section 3052 of Title 5 of the California Code of Regulations, as those provisions read on July 1, 2008. These funds shall be used exclusively for programs operated pursuant to this part and, as a first priority, for the programs and services required pursuant to Section 56523 and its implementing regulations. By virtue of these funds, Section 56523 and its implementing regulations shall be deemed to be fully funded within the meaning of subdivision (e) of Section 17556 of the Government Code. (g) Within the meaning of subdivision (e) of Section 17556 of the Government Code, the funds appropriated for purposes of this section are not specifically intended to fund any state-mandated special education programs and services resulting from amendments enacted after July 1, 2008, to any of the following statutes and regulations: (1) The federal Individuals with Disabilities Education Act (20 U.S.C. Sec. 1400 et seq.), if the amendments result in circumstances where state law exceeds federal law. (2) Federal regulations implementing the federal Individuals with Disabilities Education Act (34 C.F.R. Parts 300 and 303), if the amendments result in circumstances where state law exceeds federal law. (3) This part. (4) Sections 3000 to 4671, inclusive, of Title 5 of the California Code of Regulations. (h) State funds appropriated by the annual Budget Act and otherwise allocated to each special education local plan area pursuant to Chapter 7.2 (commencing with Section 56836) shall supplement and not supplant the funds provided pursuant to subdivisions (a) to (e), inclusive. The funds provided pursuant to subdivisions (a) to (e), inclusive, shall be in addition to the level of any cost-of-living adjustment provided for purposes of this chapter in the annual Budget Act. SEC. 3. Section 56836.161 is added to the Education Code, to read: 56836.161. (a) (1) The amount of eighty-five million dollars ($85,000,000) shall be appropriated from the General Fund on a one-time basis in each of the 2011-12 to 2016-17 fiscal years, inclusive, to the Superintendent for allocation to school districts on a per-pupil basis. The Superintendent shall compute the amount per pupil by dividing eighty-five million dollars ($85,000,000) by the total average daily attendance, excluding attendance for regional occupational centers and programs, adult education, and programs operated by county superintendents of schools, for all pupils in kindergarten and grades 1 to 12, inclusive, in all school districts as used by the Superintendent for the second principal apportionment for the 2007-08 fiscal year. The allocation for each school district shall equal the per-pupil amount times the district's average daily attendance as reported to the Superintendent for the second principal apportionment for the 2007-08 fiscal year. The amount allocated to each school district shall be the same in all subsequent fiscal years as it is in the first fiscal year. (2) Notwithstanding paragraph (1), the state, in its discretion, may appropriate and allocate amounts in excess of eighty-five million dollars ($85,000,000) annually in any of the 2011-12 to 2016-17 fiscal years, inclusive, for the purpose of discharging the obligation in advance of the period, so long as the total amount appropriated and allocated pursuant to this section during that time period is five hundred ten million dollars ($510,000,000). (3) In any fiscal year, commencing with the 2012-13 fiscal year, in which the amount of the minimum funding guarantee for the support of school districts and community college districts is determined by paragraph (3) of subdivision (b) of Section 8 of Article XVI of the California Constitution, the annual appropriation described in paragraph (1) shall not be made. (4) The Director of Finance shall notify, in writing, the fiscal committees of both houses of the Legislature, the Controller, and the Superintendent no later than May 14 of a fiscal year if the appropriation for the following fiscal year is not required pursuant to paragraph (3). If an appropriation is not made pursuant to paragraph (1) for a specific fiscal year or years, it shall instead be made in the fiscal year or years immediately following the final payment pursuant to paragraph (1). (5) The funds described in this section shall be in addition to the level of any cost-of-living adjustment provided to school districts in the annual Budget Act. (b) From the funds appropriated for purposes of this section by subdivision (b) of Section 4 of the act that added this section, the Superintendent shall allocate all of the following: (1) The amount of one million five hundred thousand dollars ($1,500,000) to county offices of education in equal per-pupil amounts. The Superintendent shall determine the per-pupil amount by dividing one million five hundred thousand dollars ($1,500,000) by the total statewide county special education pupil count, as reported by county offices of education as of December 2007. The allocation for each county office of education shall be the per-pupil amount times the county's special education pupil count reported as of December 2007. The Superintendent shall adjust the computations in such a manner as to ensure that the minimum allocation to each county office of education is at least five thousand dollars ($5,000). (2) The amount of six million dollars ($6,000,000) to special education local plan areas that existed for the 2007-08 fiscal year. The Superintendent shall determine the amount of the allocation for each special education local plan area by dividing six million dollars ($6,000,000) by the statewide special education pupil count reported as of December 2007. The allocation for each special education local plan area shall be the statewide per-pupil amount multiplied by the special education pupil count for the area reported as of December 2007. The Superintendent shall adjust the computations in a manner that ensures that the minimum allocation to each special education local plan area is at least ten thousand dollars ($10,000). (3) The amount of two million five hundred thousand dollars ($2,500,000) to the San Joaquin County Office of Education. (c) The funding provided pursuant to subdivisions (a) and (b) and subdivisions (a) to (e), inclusive, of Section 56836.16 shall be deemed as payments in full satisfaction of, and in lieu of, any reimbursable mandate claims resulting from the statement of decision of the Commission on State Mandates regarding the Behavioral Intervention Plans Mandated Cost Test Claim (CSM 4464). SEC. 4. (a) The amount of sixty-five million dollars ($65,000,000) is hereby appropriated from the General Fund to the Superintendent of Public Instruction in augmentation of Item 6110-161-0001 of the Budget Act of 2009 for purposes of Section 56836.16 of the Education Code. It is the intent of the Legislature that the funding appropriated by this subdivision be included in the annual Budget Act in subsequent fiscal years. (b) (1) The amount of ten million dollars ($10,000,000) is hereby appropriated from the General Fund to the Superintendent of Public Instruction for allocation on a one-time basis to county offices of education and special education local plan areas pursuant to subdivision (b) of Section 56836.161 of the Education Code. These funds shall be in addition to the level of any cost-of-living adjustment provided for county offices of education and special education local plan areas in the annual Budget Act. (2) For the purposes of making the computations required by Section 8 of Article XVI of the California Constitution, the appropriation made by this subdivision shall be deemed to be General Fund revenues appropriated for school districts, as defined in subdivision (a) of Section 41202 of the Education Code, for the 2007-08 fiscal year, and included within the total allocations to school districts and community college districts from General Fund proceeds of taxes appropriated pursuant to Article XIII B, as defined in subdivision (e) of Section 41202 of the Education Code, for the 2007-08 fiscal year. SEC. 5. This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are: In order to alleviate, at the earliest possible time, the fiscal hardship to local educational agencies caused by the persistent shortfalls in federal funding for special education, to increase state funding for the special education program thereby reducing encroachment, to facilitate the settlement of current litigation regarding those programs and the funding thereof, to obviate new litigation, and to resolve related school finance issues, it is necessary that this act take effect immediately.