Debate Transcripts

LB 742 (1995)

General File

April 19, 1995


SPEAKER WITHEM:  LB 240 passes.  And I would announce that while the Legislature is in session and capable of transacting business, I propose to sign and do sign LB, 65, LB 240 and LR 3CA.  Excuse me, I'm sorry, we did not read 3, I'm sorry.  Nice try on my part, Doug, I'm sorry we can't do that.  We are no longer on Final Reading.  The call would be raised.  LB 742.


CLERK:  Mr. President, 742 introduced by Senator McKenzie at the request of the Governor.  (Read title.)  The bill was introduced on January 19 of this year, referred to the Education Committee, advanced to General File.  There are committee amendments pending.




SENATOR LANDIS:  Senator McKenzie, on the committee amendments.


SENATOR McKENZIE:  Thank you, Senator Landis and members of the body.  Just in terms of a procedural decision, Mr. Clerk, could we take up the amendment to the amendment?  It becomes the committee amendments and in light of saving some time we may as well begin with the amendment to the amendment.


CLERK:  1019, Senator, AM1019?




CLERK:  Senator Bohlke would move to amend with AM1019, Mr. President.  It is found on page 1177 of the Journal.


SENATOR LANDIS:  Senator McKenzie, to open.


SENATOR McKENZIE:  Thank you again and, colleagues, Senator Bohlke is not here today but she has authorized me to go ahead with this amendment.  Basically what the amendment does is




strike the original committee amendments, adding transportation under the lid and let me briefly go through what is included in the committee amendments and then I would be pleased to answer any questions you might have.  LB 742 was introduced with a flat cap on special education growth beginning next year, capping the amount the state would reimburse school districts, through its process, to the same amount that it would be spending this year and that would be about 122 million.  The committee, after the hearing, decided to change that to allow for growth at the same average rate of general education beginning in the year 1996.  The Pages will be distributing some materials for you but the page you may want to refer to is the one-page sheet with the time line.  The time line on the left is basically what we'll be talking about here in the amendment to the amendment.  Beginning then in 1996 and '97 we will allow special education rates or cost to grow at the same rate as general education which has averaged about somewhere between four and 6 percent.  This is an attempt to get special education down from the 10.3 percent rate of growth that we've been experiencing yearly.  The 10 percent growth factor began a number of years ago, and in fact if we do not do something about that rate, we will double the amount of money the state uses to reimburse special education again in five years.  That's the first thing that the amendment does.  It allows for that rate of growth to match the rate of general education.  The second thing it clarifies is that transportation should be included in that cap, the transportation that is required in state statute for special education.  It also then clarifies that this cap does not affect Level I services in this year, '94-95, but would begin then in the following years, '95-96.  And finally it allows that, I believe those are the two things it does.  We do have a following amendment that will talk about the reform effort that was clearly suggested at the hearing.  If we are in fact going to try to limit the amount of money spent by the state for special education, we heard clearly from people at the hearing that something has to change.  There will be an amendment following that attempts to create a study process.  That is the other line on the time line that is called the reform effort and it's a way to look to find some relief in the increased cost of special education and in maintaining that those students who qualify for special education retain those civil rights that they have fought long and hard to have, that in fact we are delivering the same high quality of services that have been delivered in Nebraska since the beginning of special education programming, but that we are guaranteeing more flexibility to the local district, less rigid regulation and




paperwork from the department, and a way in fact to get around the requirement that currently exists to have to verify in order to receive any service or any funding at all.  With that I would answer any questions you might have about the specific amendment to the amendment which just specifically deals with the limit on spending and the allowable growth after 1996.  Thank you.


SENATOR LANDIS:  Thank you, Senator McKenzie.  Senator Avery's.  has just gone.  on and that's the only light on the amendment to the committee amendment.  Senator Avery.


SENATOR AVERY:  Thank you.  I have one question for Senator McKenzie.


SENATOR LANDIS:  Senator McKenzie, would you yield to a question?




SENATOR LANDIS:  Thank you, Senator Avery.


SENATOR AVERY:  Thank you.  Could you elaborate a little bit on why the reasoning on transportation being included?, You know, from the districts that I represent, a lot of the transportation costs are fixed.  There's not a lot of savings that can be done on that, and I think just for the record if there is any reasoning for including that, if they feel that there could be some cost savings achieved in that, I think we need to have it discussed a little bit.


SENATOR McKENZIE:  Senator Avery, the purpose for making sure that transportation was included in the amendment to amendment is that in the original committee amendment we had referred to only sections of statute that dealt with reimbursement cost for services and not that section that talked ,about transportation.  This is just an attempt to say, transportation, as is covered in Section 79-3322, that requires a district to pay for transportation if a child has to receive services outside that district, that if they are a child in the preschool program, transportation services are provided if they are special education.  Those expenses have to be included under the cap or clearly we have exempted them and we would reimburse at the same rate we currently had for transportation.  This just makes sure everything is included that is required under the special education statutes under the cap with then the allowable




growth rate.


SENATOR AVERY:  Okay, thank you.  You know the concern I have is many times that, from the districts, when you have a small district that transportation cost is something that there really isn't a lot of savings for and it has to be factored in if there is more people that contract.  A couple of the schools basically contract with other areas to take care of the special ed and those costs are in "transportating" and in transporting those students to a different school several miles away and because of the different time frame they've tried many ways to see if they could pick up several and make one trip, but a lot of times arrangements and schedules don't fit, so those students have to be taken on special times and it sometimes is only one student in a vehicle which is very costly to do.  And I don't know in those small school districts if there is another way we can handle that or allow the schools some flexibility to work under that system where they could possibly find some cost savings in transportation, but I just don't know if it's there and that's why I raised the question in terms of transportation being something that is locked in, that there really, in many cases, isn't for the small schools anyway, isn't a mechanism where they could save.  And it's just going to have to, they may have to make their savings in other areas to help pay for that added transportation cost.  Thank you.


SENATOR LANDIS:  Thank you, Senator Avery.  Senator Vrtiska, followed by Senator Pedersen, the remaining lights on on the Bohlke amendment to the committee amendments.  Senator Vrtiska.


SENATOR VRTISKA:  Thank you, Senator Landis, I would ask if Senator McKenzie would yield to a question, please.


SENATOR LANDIS:  Senator McKenzie, would you take a question?




SENATOR LANDIS:  Thank you, Senator Vrtiska, proceed.


SENATOR VRTISKA:  Senator McKenzie, I certainly applaud the idea, of reducing expenditures.  Obviously, I think it'" a good move.  But one of the questions I have is, are we at the same time reducing some of the mandates that some of the schools have that's ...  you know, if we don't work these together then it's going to cause a real problem with some of the schools in order




to keep Up the funding for their program and I'm curious about how that is being addressed?


SENATOR McKENZIE:  Senator Vrtiska, those very concerns are addressed in the following amendment, AM1313....




SENATOR McKENZIE:  ...  and also transportation and what we require in terms of transportation by those districts.  If I can take one more minute of your time.




SENATOR McKENZIE:  Clearly, as I said, we heard from those interested parties, whether it was parents or financial directors for school districts or superintendents or board members, that we have to look at what we require.  We have to look at the rigid regulations that we've established in the state and the following amendment, which is called the road map or the reform amendment, talks about the process to relieve some of those mandates and regulations.


SENATOR VRTISKA:  Well I appreciate that because I think that's an important part of this process if we're going to somehow continue to mandate, you know.  Basically there is court decision that requires some of these things to be done, and I was curious how some of those are going to be handled.  Otherwise some of the schools are going to be absorbing a lot more costs and have no way to pay for them.  And so I'll be interested in listening to what your amendments will do.  With that, thank you very much.


SENATOR LANDIS:  Thank you, Senator Vrtiska.  Senator Pedersen, our last light on the Bohlke amendment.


SENATOR PEDERSEN:  Senator Landis and members of the Legislature, a couple questions for Senator McKenzie, please.


SENATOR LANDIS:  Senator McKenzie, would you yield to a question?




SENATOR PEDERSEN:  Senator McKenzie ...




SENATOR LANDIS:  Thank you.  Senator Pedersen, you may Proceed.


SENATOR PEDERSEN:  Thank you.  In the block grants that we're talking about here ...  pardon me?  That's coming up in the next amendment.  I think I need to talk on that one.  Sorry.  Thank you.


SENATOR LANDIS:  Thank you, Senator Pedersen.  There are no other lights.  Senator McKenzie, to close on this amendment.


SENATOR McKENZIE:  Just briefly, thank you, Mr. President.  Again, this amendment does basically two things.  It makes sure that transportation as required by special education statute is included in what will be capped under this limit for special education.  And while transportation will be a discussion on the next amendment in terms of the big picture, what's important here is that if we're going to limit the money to the growth rate of regular education we don't want transportation to be the only thing out there that is fully reimbursed because then you will force limitation of services for children in the classroom at the expense of transportation.  So essentially the amendment allows for that growth rate and to make sure that we have transportation included in the whole discussion.  I would ask for your adoption of the amendment to the committee amendments.


SENATOR LANDIS:  Senator McKenzie having closed, the question is now the adoption of the Bohlke amendment to the committee amendments.  All those in favor vote aye, those opposed vote no.  There are a number of colleagues here in the Chamber.  I hope that you'll take the opportunity to record your vote either for or against the amendment so that we don't have to use a call of the house.  If you would, please return to your seats if you can and register your preference on the issue so that we may proceed on LB 742.  Mr. Clerk.  The Clerk will record.


CLERK:  25 ayes, 1 nay, Mr. President, on the adoption of Senator Bohlke's amendment.


SENATOR LANDIS:  Thank you.  The amendment 13 adopted.  Mr. Clerk, other amendments?


CLERK:  Senator McKenzie has AM1040.  Senator, I have a note you want to withdraw AM1040.




SENATOR McKENZIE:  Mr. Clerk, I'd like to substitute AM1313.


CLERK:  It's the next amendment, Senator, so we can...


SENATOR McKENZIE:  Either way.


CLERK:  ...  go right to it if that's your pleasure.


CLERK:  AM1313 found on page 1392.


SENATOR LANDIS:  This is an amendment to the committee amendments, Mr. Clerk?


CLERK:  Yes, sir.


SENATOR LANDIS:  Senator McKenzie, to open on her amendment to the committee amendments.


SENATOR McKENZIE:  Thank you, Mr. President and members of the body.  AM1313 is now the right-hand side of your time line sheet and this is what we have named the road map or, the reform effort.  It is intent language that charges various agencies and commissions with the very task of reforming Nebraska's system of delivering special education services.  And let me briefly go through what the amendment contains.  I would be happy to yield some of the opening time then to Senator Bromm whose priority bill this is and Senator Bernard-Stevens who cosponsored this amendment.  Basically what we have done is charged the State Board of Education and the Department of Education with a complete review of their rules and regulations in state statute, looking for any rules or regulations that should be repealed or modified.  Now you may have received a number of letters concerned about the zero to three program.  In the original element sheet used to draft the amendment there was language that said all federal regulations, all state regulations and programs not required by the federal mandate would be repealed .  I want to make clear on the record that we are not targeting 0 to 3 or 18 to 21 for elimination.  However, in this review process over the course of the summer and fall we want to be sure that the State Board of Education and the department can review everything we do from 0 to 21 in special education.  But it does ask that they look for any exceptional or stricter mandates than we would have been required to include from the federal level.  It asks for those recommendations, to be presented to the Education Committee by November 1 of 1995.




Those would be preliminary recommendations based on their study of any rules, regulations that need to be modified, state statutes that need to be repealed or modified and suggestions about the program scope from 0 to 21.  The second thing the amendment does is ask that the Special Education Accountability Commission review and consider using a block grant approach instead of a reimbursement approach for funding special education costs.  And in that description we have outlined a number of considerations we are asking them to review.  Those are listed beginning on page 2 in line 24.  How to establish the basis for distribution of the block grants; how to provide for financial support of students with those extremely high-cost disabling conditions; how do we help districts deal with those students in a-block grant approach; how to establish a proper funding level for block grants; how to assure funding for, special education is maintained at the same level of growth or decline as funding levels for general education; how to establish educational practices for delivery of quality services.  We do not want to affect the quality of the service that we have been able to deliver.  How the block grant funding would be integrated with general state aid to be consistent with principles of equity underlying our equalization efforts; how to phase in the block grant funding so that we have a minimal financial impact on districts; how accountability will be connected to receiving the block grant money; and how the state department can integrate the block grant funding to eliminate duplication in aid payments.  Currently special education money is distributed in a completely different system through a completely different formula than is 1059 money, and we're looking for a way to merge the system, not necessarily the money, so that we can deliver that in a more efficient manner.  We also have asked the School Finance Review Committee to be involved as their role in monitoring equalization efforts is critical and special education is certainly an important part and funding an important part of what we're doing in the efforts to equalize.  Again, we have allowed for the pilot projects, which we charged the Special Education Accountability Commission to begin two years ago, for those pilot projects to go ahead.  Those will kind of be the testing ground for the block grant approach, and we ask then that the Special Education dations?  to the Education Accountability Commission make recommendation Committee at the end of this year as well.  So in summary, we are asking the Department of Education and the Special Education .Department, the State School Board to review what we have in rules, regulations and state statutes.  We're asking Special




Education Accountability Commission, along with the School .Finance Review Committee to make recommendations about moving toward a block grant approach.  I will tell you at the time the bill was introduced there were only three other states who used a reimbursement system similar to Nebraska's.  My understanding is currently we are probably one of only two states that are still using excess cost reimbursement.  Virtually all other states have had to deal with this problem and have moved to a block grant approach.  There is also indication that block grant approach will be the approach chosen by the federal government to continue its funding efforts for special education.  I would yield the rest of my time to Senator Bromm or Senator Bernard-Stevens, waives no, Senator Bromm, if you would like to make some remarks also.


SENATOR LANDIS:  Senator Bromm, you have four minutes remaining of the opening statement.


SENATOR BROMM:  Thank you, Mr. President, and thank you, senator McKenzie, for allotting me some time.  I have found it an interesting process in the Legislature to choose a priority bill and I wanted to speak for just a couple of seconds.  I've tried to always choose a priority bill that I felt would have an impact not only in my district, but in the entire state and also to choose a bill which I felt would address a critical need in the state.  And in searching for a bill that I could designate as a priority I found 742 to fit that criteria very well.  I don't know that I've ever chosen a priority bill that focuses on a problem without necessarily providing a solution, but that is one of the characteristics of 742 in the amendments.  LB 742 and the amendments say we have a problem, we have runaway cost escalation in the area of special education which is one of the entitlement areas that we're seeing runaway cost increases in.  We recognize that if this growth continues in the entitlement area at its present rate, by the year 2006 over half of our General Fund of the State of Nebraska will have to be spent on entitlements and that would cause some serious adjustments in the way we do business in the State of Nebraska.  In attacking that problem, in the area of special education, it is not possible with one fell swoop to find a solution, and the approach of this bill is to recognize the problem, to put a temporary limit or cap on the amount of resources that we are spending in that area, and then to say that the growth of spending in that area will be limited to the growth we experience in other areas of general education in the state and




that is step one.  Secondly, and very importantly, as Senator McKenzie has begun to describe, there is a process in the amendment which prescribes certain time lines for the various groups, including the Special Education Accountability Commission, to identify possible cost savings areas and to come back with recommendations to the Education Committee with the possibility of legislation to be introduced the first of January of 196 to address those cost containment measures or steps that we could take.  It's an aggressive time line, it's one that some have said that...


SENATOR LANDIS:  One minute.


SENATOR BROMM:  ...  I've talked with is going to be difficult to comply with, but I suggest that we need to be aggressive in addressing the problem.  We can't procrastinate any longer.  My fear is that we'll reach a point where some will say, due to the costs, that we have to abandon the needs of children who have special education needs, clearly have needs.  And I, for one, and, I think, my colleagues here do not want to get to that point.  We want to take care of those who need special education, those who can benefit from special education.  We want to provide those children with the services.  However, we have to find a better way to control the cost.  There has to be additional restraints on costs ....




SENATOR BROMM:  Thank you, Mr. President.


SENATOR LANDIS:  Thank you, Senator Bromm.  Let me give you the batting order and then I'll also recognize some student groups that are in the balcony.  Senator Pedersen will be followed by Senator Vrtiska, then Senator Bromm again, Senator Dierks and Senator Maurstad.  Those are the lights that the Chair has.  However, right now I'd like to recognize guests of Senator Fisher.  They are 48 fourth graders and three sponsors from Wasmer Elementary School in Grand Island.  If those children would stand up we'd like to see you here in the Nebraska Legislature so we can recognize you.  Thank you.  And if you ,look in the balcony you can see Senator Cudaback.  He is there addressing 50 fourth graders and three sponsors from Morton Elementary School in Lexington.  If those 50 fourth graders from Morton Elementary would stand up we'd like to recognize you, too.  Thank you for coming for the Nebraska Legislature and we




are now on General File debating LB 742.  Senator Pedersen is up.  Senator Pedersen.


SENATOR PEDERSEN:  Senator Landis and members of the Legislature, Senator McKenzie, would you submit to a couple of questions, please?


SENATOR LANDIS:  Senator McKenzie, would you yield to a question?


SENATOR McKENZIE:  Yes, Senator Pedersen.


SENATOR LANDIS:  Senator Pedersen, you may continue.


SENATOR PEDERSEN:  My questions are around the block grant and I don't know if you talked about this or if you talked to the people in this area.  But I've got a couple of small school districts in my district of Bennington-Elkhorn and part of the Gretna school district is in my legislative district and then I've got a couple big school districts, Omaha and Millard.  But for instance, the program at Westside in Omaha hat a Cadillac of a program, really a good program going, and then schools like Elkhorn and Bennington are just getting started.  Is there any talk about how that is going to be distributed as far as to hope that we can get these programs going better or is it going to be just across-the-board type blocks or..  could you answer that, please?


SENATOR McKENZIE:  Senator Pedersen, those are all the questions that we are asking the Special Education Accountability Commission to address.  When we look at moving from one system which is basically reimbursement a year in arrears, and I mean superintendents have complained about that for a long time.  If you have a child move in, in September, who is costing your district $100,000, you do not get that reimbursement until the following year.  Moving to the block grant approach would provide the district some amount of money at the beginning of the year and those are all the things that we're asking the Special Education Accountability Commission and the School Finance Review Committee to recommend.  And we have to look at what happens if it's a Class I district, what happens if it's an Elkhorn, what happens if it's a Gretna and they are experiencing rapid growth, many, many students moving in?  Those are the things we are asking the Accountability Commission to recommend and we're asking that because they have spent the last year




looking at other alternatives in other states, and in particular Montana's block grant approach, because Montana has a very similar geography and distribution of school districts, similar to Nebraska, rural districts, large districts and those recommendations will come from the Accountability Commission.


SENATOR PEDERSEN:  I would like to suggest and have it on the record that we at least take a look at that particular area because if you've got a program that's only running at 50 percent of what you want it to run and another program is running at 100 percent and you're going to cut 10 percent, well obviously you've only got 40 compared to 90 again and I think it needs to be done in a fair way.  Thank you.


SENATOR LANDIS:  Thank you, Senator Pedersen.  Before we move to Senator Vrtiska, our next speaker, the Chair would like to recognize guests of Senator Bohlke.  These are 55 fourth graders and two sponsors, and they're in the south balcony.  And they are from the Alcott Elementary School in Hastings.  Students, if you'd stand up we'd like to see you, recognize you and wave to 'you.  Thanks for coming today.  Senator Vrtiska, you are recognized on the McKenzie amendment to the committee amendments.


SENATOR VRTISKA:  Thank you, Senator Landis and members of the Legislature.  I would again like to say that I certainly applaud the effort to reduce spending in any area of government that we can do.  However, I have some real concerns I think I need to address or to get some questions from Senator McKenzie, if she would yield, please.


SENATOR LANDIS:  Senator McKenzie, would you respond to a question?




SENATOR LANDIS:  Senator Vrtiska, you may proceed.


SENATOR VRTISKA:  Senator McKenzie, one of the superintendents or administrators of one of the school districts that contacted me indicated that if in fact some of these reductions in funding from the state and federal takes place that some of the costs will be shifted to the local level.  Do you see that as a possibility or how do you address that issue?




SENATOR McKENZIE:  Senator Vrtiska, that is certainly a concern and that was the concern about the cap on the original bill.  Capping the amount that we would reimburse or provide to school districts without looking for ways to deliver services in a different way, to look at all the requirements for transportation, requirements for identification and verification, all of those have to be reviewed in order to find ways to save some money, to bring down those costs.  Clearly I know members of the Education Committee are concerned about that.  We do not want to pass the burden back to the district to increase property tax to handle the problem.  But unless we deal with the problem, the state's ability to provide money for equalization to districts will soon be in jeopardy as well.


SENATOR VRTISKA:  Well I understand that and I appreciate that.  But we still go back to the same issue that we discussed when I talked to you before, and that is if we continue to mandate certain programs that a district has to carry out, either from the federal, the court or from the state, and we don't provide a sufficient amount of money to carry on those programs, it looks to me like...I mean I guess I'm certainly in favor of some type of reduction.  My greatest fear is if the reduction comes at the expense of local taxpayers and we in fact, if we're not able to adjust some way those costs that we're indebted to in the special ed field, if we can't somehow get those under control and it really...  I don't think there is any other way except to pass it down to the local taxpayers, which you know is going to cause more problems than they're experiencing right now.  Arid I guess my real concern is that somehow through this whole process we keep that in mind and try to come to an understanding how we can do it.  And I applaud you for attempting to do this because I think it's important.  I guess again, my only fear is that it doesn't in fact end up being just a transfer to who pays the bill.  And I don't know if you have any comments along that line or what your committee has decided.  Obviously there was a great deal of opposition to this all the way along and I can understand that.  Always when we have to make these kinds of cuts and we understand it in all levels of government, there is always going to be objections.  I guess my hope is that we can make those cuts in the least damaging manner and still provide what we're going to be required to by the various levels of government, so do you have anything wise and helpful that you can add to my conversation?


SENATOR LANDIS:  Senator McKenzie, apparently the rest of his




April 19, 1995 -LB 742


time is yielded to you.


SENATOR McKENZIE:  Thank you, Senator Landis and Senator Vrtiska, wise, I don't know, but I remind you that I have a county with every community over $3 in property tax levy so I am certainly not interested in passing the burden on to my local taxpayers for dealing with this.  There are 25 other states, however, who require a greater local contribution than Nebraska does.  We have had a very generous, very supportive program.  And it's a bit of a doubleedged sword because if we can't figure out a way to deliver services and to contain the cost, then we begin to eat away at 1059 money, and when we eat away at 1059 money we are doing the very same thing.  We are forcing more reliance on property tax.  So we have two competing interests using the same money and one that is growing at a rate faster than any other program, any other "titlement" in the state and that's what we're trying to look at, what can be done, how can we better...




SENATOR McKENZIE:  ...  deliver services and bring the costs within reason.


SENATOR LANDIS:  Thank you, Senator McKenzie.  Senator Bromm is recognized, followed by Senator Dierks, Senator Maurstad, Senator Beutler, Hartnett, Robinson, Bernard-Stevens, Stuhr and Janssen.  Senator Bromm.


SENATOR BROMM:  Thank you, Mr. President.  Senator Vrtiska raises a point that gave me some initial concerns when I looked at the bill, especially the green copy and so forth.  The number one question is, how can we expect this to work or any efforts work if you have the continuing mandates of the state and federal government that exist?  You're simply shifting the burden to the local taxpayer to pick up what is mandated upon them by federal government, state government and by the court system.  Well first of all, part of the process of the bill and the amendments will require the state to take a hard look at all.  of the state requirements that exceed the federally required mandates and with an eye towards eliminating those excessive state requirements.  So that in itself should be somewhat helpful in reducing the mandates to the extent that we legally can within the State of Nebraska.  Now that isn't going to be a great significant help in terms of cost containment but it




April 19, 1995 LB-742


should be of some help.  Secondly, I think the federal government, Senator Vrtiska, right now is looking at some changes in the federal requirements .  And while our process is ongoing and we have a pilot project it's ...  I think we can be somewhat hopeful that the federal government may change some of their requirements which would take some of the pressure off some of the cost.  Beyond the mandate question the other area that I'd like to quickly address is that even those who work in the special ed area and administrators who administer in the special ed area, I think many of them would tell you that there have been, there has been some examples of spending that perhaps could have been curtailed or maybe shouldn't have been shifted to the special ed area.  And without getting into specifics that I've received a couple of letters on from schools or talked with some administrators about, I think that the process we're going to go through here is going to result in schools making a more conscientious effort at identifying those students who truly need special ed help versus those who can perhaps receive some additional help in the regular main stream of education.  It will require and encourage schools, I guess, would be a better work, it would encourage schools to be very prudent in how they use those dollars because it's not a bottomless pit.  As it stands right now, and I was on the school board for 10 or 11 years, when it's a special ed matter many times the discussion got to the point where someone would say, well, it's reimbursable anyway, it's 90 percent or 100 percent reimbursable so why don't we do it?  Well, that won't happen under the philosophy of the bill and the amendments, 1 don't believe, because schools will realize that we don't have an endless stream of money, we don't have a bottomless pit and we will have to figure out how to use those dollars as efficiently and as prudently as possible and it is a road map.  This bill is not a total and final solution...


SENATOR LANDIS:  One minute.


SENATOR BROMM:  ...  but it is a road map to set us on the road to encourage schools to be prudent and conscientious as much as possible with these dollars.  So I guess I want to address, to just review a little bit your question about the mandates and how that could change to some extent and, secondly, how this bill can help even if we don't have much of a relaxation of the mandates by encouraging more prudent use of the dollars at the local level.  Thank you, Mr. President.




April 19, 1995 -LB 742


SENATOR LANDIS:  Thank you, Senator Bromm.  Senator Dierks, followed by Senator Maurstad.


SENATOR DIERKS:  Thank you, Mr. President, I'd like to ask Senator McKenzie a question, please.


SENATOR LANDIS:  Senator McKenzie, would you respond to a question?




SENATOR LANDIS:  Thank you, Senator Dierks, you may proceed.


SENATOR DIERKS:  Senator McKenzie, I'd like to have you discuss a little bit more of the block grant issue and who will write those block grants, and how they affect the total funding picture for the individual schools like in your district and my district?  Would you do that, please?


SENATOR McKENZIE:  Senator Dierks, I will do the best I can in a hypothetical situation.  We are looking to a block grant which is not a grant that you have to write an application for, but is a certain amount of money, and let me use the example of Vermont because they've gone to a block grant approach.  Instead of reimbursing for excess costs at the end of the year, the money coming the next year school districts would be allocated a certain amount of money based on an average per pupil cost for that 75 percent of their special education population who is mildly handicapped, has mild learning disabilities, speech and language, autism, those kinds of areas.  Then they allow for an additional average for 1 to 2 percent based on what the state average is or the district's average is for those high need students.  So they have, the ones that are very expensive, so they have really two layers in there, and it comes to the school district at the beginning of the year instead of waiting to see how much you had to spend the year beyond that.  Now Vermont .also allows some money at the state level for an emergency fund.  We had a student move into the district, we have ...  you know, in our block grant, in our funds, no way to provide these services and they allow that there is a mechanism like that so the district isn't hit with the cost for that student.  However, currently if that student moves in, they are hit for that entire year and they get the money the following year, in many cases the student moves away, so they get the money the year after they don't need it.  Now the block grant approach would come to




the district.  We would allow the district, and again, these are the things we're asking the Special Education Accountability Commission to recommend, we do not have the specifics in this because we want them to come back in November with those recommendations.  The district then has some flexibility in deciding whether or not they have to verify a child to deliver some services.  Seventy-two percent of our children are mildly learning disabled or speech and language impaired.  If you see a first grader with a speech and language delay, do we have to go through the $2,500 process to verify in order to provide services to develop language skills?  We would argue, no.  But currently they cannot provide that kind of special help with a special education instructor or receive...use any of their special education money for that unless the child is verified.  So it allows more flexibility.  The money comes to you up front and that mechanism has to be there to help districts deal with those extreme cases.  That's all very hypothetical.


SENATOR DIERKS:  Thank you.  One suggestion that I've heard around here a little bit is that maybe on that commission, as it is established, there might be a need for Another school board member or maybe one of those four administrative, nonadministrative people could be a school board member.  And one suggestion was even that there be a school board member from each congressional district, so give that some thought.  Thank you very much.


SENATOR LANDIS:  Thank you, Senator Dierks.  Senator Maurstad, followed by Senator Beutler, Senator Hartnett and Senator Robinson.  Senator Maurstad.


SENATOR MAURSTAD:  Thank you, Mr. President, and if Senator McKenzie would yield to a couple of questions.


SENATOR LANDIS:  Senator McKenzie, would you respond to a couple of questions, to a question?


SENATOR McKENZIE:  Be happy to.


SENATOR LANDIS:  Thank you, Senator Maurstad, you may proceed.


SENATOR MAURSTAD:  Thank you, sir.  Senator, in Section 2 on line 2, 1 think it would be page 2 of the amendment, but Section 2, line 2, we indicate that Legislature finds the funding system for special education program shall be neutral as




to identification and programming of services for students with unique needs.  And if my review is correct, we use the term "unique needs" six times through this amendment and I was wondering if you could provide me with a definition of unique needs.


SENATOR McKENZIE:  Senator Maurstad, you have picked up on an area where we struggled to find the correct language in statute to discuss what we were talking about.


SENATOR MAURSTAD:  What is this?


SENATOR McKENZIE:  We had originally talked about unique needs comes from the definition of special education in the current statute, in 79-3314.  Special education shall mean specifically designed instruction at no cost to parent or guardians to meet the unique needs of a handicapped child.  That was the only language we could find other ...  we tried special needs, that didn't work.  However, let me tell you, if I can take 30 seconds more of your time, that on Select File we will offer an .amendment that changes the language "unique needs" to "handicap" or "handicapping condition" so that clearly we are talking only about those students that are now included under those 13 categories of special education handicapping conditions.  I think that will clarify, for our purposes here in moving to a different system, that we are talking about the children we have served traditionally, and I know there will be discussion about whether that's what we should do, but that certainly is what we will attempt to clarify on Select File.


SENATOR MAURSTAD:  Thank you, and I appreciate your willingness to look at that aspect.  My second question, if I have enough time is, we talk, in Section 1 and then at the tail end of Section 2 and in Section 6, about a lot of boards and commissions and committees and the concept of collaboration .  And in your, first of all, I want to commend you for the amount of work that you've put into this.  In your work could you I expand upon a little bit your feelings about the collaboration effort that this amendment directs and from your assessment of whether or not that effort will be successful.


SENATOR LANDIS:  Senator McKenzie, would you respond to the question?


SENATOR McKENZIE:  Senator Maurstad, actually I met this morning




with the School Finance Review Committee and.  they had the very same question.  We have asked the State Department of Education,, the State School Board, the state School Finance Review Committee, and the Special Education Accountability Committee, and the Education Committee of the Legislature to work together and yet within this amendment we have not outlined exactly how ,that will happen.  I would offer to you that as an interim study for the Education Committee I believe we will take the charge to draft a plan as to how we can bring those different agencies and different commissions together to share their recommendations, to share their ideas...




SPEAKER WITHEM:  One minute.


SENATOR McKENZIE:  ...  and to be able then to bring some organization and some flow to the process leading up until November.  I don't believe it needs to be in the amendment, but I do believe that that will be the most critical piece of what we actually do.


SENATOR MAURSTAD:  If I interpret this right, that collaboration is going to be critical to the success of our moving into new areas prior to November, and so that's why I raise it because I think that's extremely important as we move in the direction that 742 is leading us.


SPEAKER WITHEM:  Thank you, Senator Maurstad.  Senator Beutler.


SENATOR BEUTLER:  Senator Witham, members of the Legislature, I would like to also ask Senator McKenzie a few questions to...


SPEAKER WITHEM:  Senator McKenzie, would you Like to respond to a few questions?


SENATOR McKENZIE:  Love to, love to.


SENATOR BEUTLER: improve my understanding of AM1313 and how it fits in with the entire bill.  And I might say, by way of preface, that I support these amendments and I support what we're doing here.  I think it's becoming abundantly clear to everybody that a crisis is approaching and we need to know where we are and what we can and can't do as this crisis deepens.  Currently the reimbursement rate from the state to the local is




at 90 percent; I feel very strongly that the local districts could be encouraged to be more creative if the percentage of the cost that they bore was perhaps somewhat greater.  I don't believe in programs generally where we pay for things and then local districts of any type get reimbursed no matter what they spend or how they spend it or how creatively they look at a particular situation.  And I think that this is an area where everybody is going to have to be creative in order to serve those kids that we need to serve alt a cost that is possible in this state.  Having said that, to me one of the principal things we should do with this piece of legislation is to be sure that everything is on the table and everything is considered and that this Legislature has all the information that it needs in order to make whatever decision it feels compelled to make.  In that regard, Senator McKenzie, on page ...  on the first page of your 1313 amendment it requires, first of all, that all rules and regulations or portions thereof not required either by state law, federal law or federal regulation shall be repealed or modified, so that the rules and regulations of the State Department of Education, I take it, do not require any action by school districts, educational service units or approved cooperatives that is not required by either state law, federal law or federal regulation.  And then it goes on to say that there is a report and preliminary recommendations for state laws that should be repealed, modified or retained "to reduce restrictions on school districts, educational.  service units or approved cooperatives." Now you and I know that the United States Constitution requires services to handicapped kids, educational services and we also know that, at least in certain instances, state law has built upon the constitutional requirement and we require some things in state law that are perhaps not constitutionally required.  And certainly repealing those state laws that are not constitutionally required would be, in affect, reducing restrictions on school districts, assuming we were then going into a block grant program.  What I want to know is this, as a result of this bill will the Department of Education clearly identify for the Legislature all state laws that in their opinion are not required by federal law, federal regulation or federal case law?


SENATOR McKENZIE:  Senator Beutler, I believe they will and I based that on conversations with Don Anderson, with Special Education Division of the Department of Ed who also believes that we have to get some of those statutes repealed or modified because they...




SPEAKER WITHEM:  One minute.


SENATOR BEUTLER:  So it's not your intent in this report that the department would pick and choose as to which statutes may or may not be recommended, but that they would identify, at least identify all of those statutes for us?  Is that correct?


SENATOR McKENZIE:  That's correct, that's correct ....




SENATOR McKENZIE:  ...  with recommendations as to what they believe should happen to those statutes.


SENATOR BEUTLER:  Okay, it's also possible that there could be federal requirements above and beyond what is constitutionally required by the federal government.  Some of those requirements may be in federal regulations.  Looking back at our experience with the welfare law, where we had to go through and get 29 waivers of federal regulations in order to do some of the things that we wanted to do that we were not otherwise required to do, is it possible...  is that same situation exist here where we may be, there may be things that are "waiverable" and we may want to go back to the federal...


SPEAKER WITHEM:  Time.  Senator Hartnett.


SENATOR HARTNETT:  Mr. Speaker and members of the body, Senator McKenzie, can I ask you some questions?  In your opening statement, these are just kind of general questions.  In your opening statement you said that the Costs Of special ed has been growing at the, I think you used the rate of, you know, 10 percent a year and so forth.  Have we added that many students to the stream as far as special ed is concerned?, And ...  would be one question.  And, you know, what has caused this, has the number expanded that far over the years or what has caused the rise of the cost?  Also on this ...  looking at the committee statement, you talk about Level I services.  What does that, you know, how does that rate in growth related to other levels if we have different levels?  And when you discussed this hill the, you know, the Education Committee, and I think you need to be ...  Senator Bromm for taking this as a priority bill because I think it's something that needs to be addressed.  You know, are you going to say, you know, you have a child in this




Level I, Level II, whatever the, you know, the different special ed, we're going to give the school district, you know, X number of dollars for that like they're doing in the hospitals, I guess.  I've had a recent experience with hospitalization and they'll say, we'll give you so much money for doing this process.  So these are my questions, Senator McKenzie, if you can kind of respond.


SENATOR McKENZIE:  Senator Hartnett, I will do the best I can.  If I get the questions out of sync, let me know.




SENATOR McKENZIE:  The first question was about what might be driving the cost and is it, in fact, the number of students identified?




SENATOR.  McKENZIE:  A recent report from the Special Education Accountability Commission, in fact, dated April 13th, has looked at that very issue and they say that growth in students identified was the single most significant factor in driving up special education spending; that increases in numbers of students accounted for 30 to 50 percent of the total increase.  And I would tell you the category that has grown the most is the category called Other Health Impairment.  There are 13 categories that we can identify children under with a handicapping condition.  So, clearly, that is one issue.


SENATOR HARTNETT:  What would fit under that?




SENATOR HARTNETT:  That other...


SENATOR McKENZIE:  Other handicaps.


SENATOR HARTNETT:  Miscellaneous, others, catchall, yeah.


SENATOR McKENZIE:  Children who have...  let me see if I can quickly find that.  Limited...  children who have limited strength, vitality, alertness due to chronic or acute health problems including heart conditions, tuberculosis, rheumatic fever, asthma, sickle cell anemia, hemophilia, epilepsy, lead


poisoning, leukemia or diabetes, which affects the child's educational performance.




SENATOR McKENZIE:  It has grown 300 percent.  It was added as a new category in 1988 at the federal level and we now have 1,500 children identified in the state as special education for other health impairments.  We have 38,792 children identified.  it's 11.8 percent of the total school population.




SENATOR McKENZIE:  This is K through 12.


SENATOR HARTNETT:.  That's in the...


SENATOR McKENZIE:  K through 12.


SENATOR HARTNETT:  K-12.  Yeah.  Have you looked at categorizing the different, you know, given dollar amounts per certain categorization in your...  as the, you know, as the Education Committee has looked at this issue of special ed and its growth?


SENATOR McKENZIE:  No, and one of the reasons we...  I think the commission has talked about the block grant is that allows local districts to make some decisions about which child has high cost needs and which might they be able to collaborate with the classroom teacher to provide services for, to allow a little more flexibility.


SENATOR HARTNETT:  Thank you very much.


SPEAKER WITHEM:  One minute.  Although you don't have to use it, Senator Hartnett.  Senator Robinson.


SENATOR ROBINSON:  Mr. Speaker and members of the body, Senator McKenzie, I want you...  I'm going to make a statement here and I want you to tell me whether it's true or not.  The only way we're going to accomplish lowering the cost of special education would be by having fewer teachers, less money spent on administration, fewer children selected for special education and fewer mandates.  Would you say that's it true statement?


SPEAKER WITHEM:  Senator McKenzie.




SENATOR McKENZIE:  Senator Robinson, I would say some parts of it may be true.  Mandates have not driven the cost other than new categories have been added.  Fewer teachers ...


SENATOR ROBINSON:  That's a mandate though, isn't it?


SENATOR McKENZIE:  Right.  Fewer teachers, that, we've added 17 percent from the year 1989 to 1993.  We had a 17 percent growth in numbers of children identified.  Vie had a 45 percent growth in staffing and we had a 50 percent growth in the amount of money spent.


SENATOR ROBINSON:  Will you answer my question?


SENATOR McKENZIE:  Well, I would agree,...




SENATOR McKENZIE:  ...  and we have to look for ways to use ...  work regular (interruption) ...


SENATOR ROBINSON:  I'm not sure ...  well, I'm not sure you're answer is right, but...






SENATOR McKENZIE:  It depends on when you talk about fewer teachers...




SENATOR McKENZIE:  ...  which teacher you're talking about and what the teacher is doing.


SENATOR ROBINSON:  Yeah.  And also it depends on if we have that ...  continue to have the 5 percent compounded teacher in administrative salary every year.  Isn't that correct?  Wouldn't that be a big influence on the cost?


SENATOR McKENZIE:  I would say yes.


SENATOR ROBINSON:  Now am I correct, in some states that




programs that are mandated by the federal government teachers are paid differently than, for example, they would not be on a ...  they would be on a different pay schedule than the local school board?  I thought I had heard that at one time that, for example, Chapter 1 teachers and special ed teachers would not ...  would be in a different category as far as pay is concerned.


SENATOR McKENZIE:  Senator Robinson, I believe that their salary is negotiated along with other teachers but the actual cost of that salary and their benefits is included under allowable excess growth, so the state does pay for part of those salaries.  And if it's a federal...  if it's a federal program receiving all federal funds, I would assume that the teachers are negotiated.  I mean their salaries are negotiated with the other teachers but the money for that salary comes from a different pot.


SENATOR ROBINSON:  Don't you think it's going to be pretty hard to really make any reductions because most of the ...  most of the teachers are young teachers because special education is, you know, basically it's a fairly young program and those teachers are going to be in there a long time and unless you ...  unless you make some drastic changes, you'll be lucky if you can maintain what you have now.  I don't know, I guess that's my...  I have a couple other questions.  You know what Chapter I is.  Can you tell me the difference between selecting students for Chapter 1 and selecting students in special education for resource rooms are?  Now both...


SPEAKER WITHEM:  One minute.


SENATOR ROBINSON:  ...  the 7-hildran that go in both programs are students that have ...  have had problems with reading and mathematics and I've always wondered what's the difference.  And I'm not convinced there is any difference.  Could you enlighten me on that?


SENATOR McKENZIE:  Senator Robinson, I believe you probably understand the difference between these two better than I do, but Chapter 1 was a federally funded program attempting to provide remedial ...  remedial services to children who were lagging behind in math and reading.


SENATOR ROBINSON:  Now define a resource room for me.






SENATOR ROBINSON:  Resource room does the same thing.


SENATOR McKENZIE:  Well, resource room falls under the category of those handicapping conditions and the requirements for verification are different.


SENATOR ROBINSON:  Who selects them?


SENATOR McKENZIE:  Who selects them?


SENATOR ROBINSON:  Yeah, who selects young people to go into a resource room?


SENATOR McKENZIE:  My understanding is that there are, in Nebraska, first an SAT team which is a group of teachers who make...




SENATOR McKENZIE:  ...  recommendations.


SPEAKER WITHEM:  Senator Stuhr.


SENATOR STUHR:  Speaker Withem and members of the Legislature, I just wanted to say that as a member of the Education Committee I voted against this bill as it came out of committee.  And it isn't because I don't support finding ways to cut funding of the escalating costs of special education, but I did not feel that the original bill really addressed the needs of cutting rules and regulations.  I felt that we were going around the process backwards, that we were looking at legislating before we were studying the issue and looking at ways that we could actually, reduce those mandates that were being sent out to our local schools.  And, again, I think that we need to do more studying of this issue before we actually draft the legislation.  I have a couple questions that I would like to address to Senator McKenzie.


SPEAKER WITHEM:  Senator McKenzie, would you respond to a couple of questions?






SENATOR STUHR:  I know that we have been talking about the Special Education Accountability Commission.  When was that established?  And what were the primary objectives and goals of that committee?


SENATOR McKENZIE:  Senator Stuhr, the Special Education Accountability Commission was established in 1993.  Their primary goals and responsibilities were to, if you will give me a minute, review all applicable federal and state laws, examine the funding mechanism for special education, review regulatory or procedural changes to determine compatibility with existing law, fiscal impact and impact on student findings, review findings of previous committees which have conducted similar studies, and develop broad frameworks for special education program standards, establish a system for assessing student outcomes, focus efforts on the establishment of a system for management and monitoring of special education costs and their impact on total education costs, select demonstration sites for the purpose of pilot implementation of program models which can document cost containment while maintaining appropriate services to children with disabilities.  Let me see if that's ...


SENATOR STUHR:  Okay, I mean, could I just ask you, I mean, have they had an opportunity to, you know, present any information on their findings?


SENATOR McKENZIE:  Yes, Senator Stuhr, they have submitted a preliminary report and now a second report to members of the Legislature with their recommendations.


SENATOR STUHR:  And did the ...  did that address the escalating costs?  I mean, have those findings addressed some of the things that, you know, we've been concerned about? 


SENATOR McKENZIE:  Yes, Senator Stuhr, in fact, LB 623, if you will recall, their request for additional time for the pilot projects was based on their recommendation or their view to move to a different approach, a block grant approach outside the state regulation to do things differently.


SENATOR STUHR:  Okay, so your amendment is addressing more responsibilities, changing the responsibilities, adding responsibilities.  Could you clarify that?


SENATOR McKENZIE:  Yes.  It is adding the responsibility or




clarifying the responsibility to look specifically to a block grant approach or alternative approach to the funding mechanism other than excess cost reimbursement.


SENATOR STUHR:  Okay.  All right, that answers that question to some extent.  I also, right now the schools are providing these for special need students.  If the schools do not provide, who is going to provide for the needs of the students...


SPEAKER WITHEM:  One minute.


SENATOR STUHR:  if we reduce the numbers?  Who is going to ...  who is going to be in charge or take care or to see to their needs?


SENATOR McKENZIE:  Senator Stuhr, nothing in the amendment attempts to exempt the state from their responsibility for providing free education to special education children or to any other child in the state.  That responsibility still lies with the school and with the state.  However, it allows that a district may provide services without having to go through the verification process, without having to do $2,500 worth of testing and screening and IEPs in order to say this child has a speech and language problem, what can we do to meet that child's need without having to verify.  That's one of the really critical (interruption)...




SENATOR McKENZIE:  ...  in what we're hoping to provide.


SENATOR STUHR:  Okay, thank you.


SPEAKER WITHEM:  Senator Janssen.


SENATOR JANSSEN:  Mr. Speaker and members of the body, I heard the comment a little while ago that 90 percent is reimbursed right at the present time on special ed.  It's a little misleading.  If you talk to some of your schools, you're going to find out that it's closer to 80 percent rather than 90 percent.  Another part of the bill I would like to address, Senator Dierks has addressed it, but I would like to speak on it a little also.  That 15 members on the Accountability Commission, I feel, is adequate.  Anymore than that and you're going to run into bigger problems.  But the mix, I think, should




include at least one more board member., You're going to have to eliminate someone else, I hate to ...  hate to see it get anymore than 15, but I do believe that board members have a handle on what's happening to them.  Either the board members or the business manager is someone who knows what's happening also.  But I will wait until Select File to address that situation, and I would be glad to work with Senator Bohlke and Senator McKenzie and Senator Bromm on that area.  And I hope the area of identification on some of the special ed students will be addressed.  I realize the society we're in right now we are creating more and more special ed students and their needs are getting greater all the time and it is very burdensome to the people of that district and the local schools.  But I also think that there are ...  there are other areas, not only instruction in special ed that I think that the schools can clamp down on and help such as equipment, vehicles, and so on that are...  that are written off in a couple of years and assigned to the football team or the basketball team or something like that, and I believe there is a cost that can be contained.  Now every day I drive by a Class I school with approximately 40 students in it and I see 9 or 10 vehicles parked in that parking lot, and I know and realize that they aren't the students that are driving them, they've got teachers for aides to the teachers and special ed people that are helping maybe one or two students.  And I'm not too sure if some consolidation in those areas could be...  could be addressed in moving some of those students from one location to another, even though it may...  it may cost in transportation, which we can look at also and are going to look at if they can't be centralized a little bit more.  I know it's cruel sometimes to talk about those things where we transfer young people with disabilities from one area to another but we're going to have to be a little...  a little more frugal on our spending and maybe this is one of the areas that we can ...  that we can look at.  I was also one of the two abstaining members that voted against this bill in committee and I agree with Senator Stuhr.  I didn't like the green copy either.  At that time, I thought it was a bad bill but a bad bill, I believe, is getting better all the time and I would like to thank Senator ,McKenzie and anyone else who has helped her with the amendments.  I think that we're getting in the right ...  we're starting to move the right direction here and I would be glad to help in any way that I can...


SPEAKER WITHEM:  One minute.




SENATOR JANSSEN:  ...  in trying to make this bill just a little bit better.  Thank you.


SPEAKER WITHEM:  Thank you, Senator Janssen.  Senator Vrtiska.


SENATOR VRTISKA:  Thank you, Mr. Speaker, members of the body, I would like to again ask at least one or two questions of Senator McKenzie, if I might.


SPEAKER WITHEM:  Senator McKenzie, will you respond?




SENATOR VRTISKA:  Senator McKenzie, I think that all of us here today would agree that the drug and alcohol syndrome is probably going to drive up the number of children who are.  going to be using the special ed program.  Would you agree with that?




SENATOR VRTISKA:  Okay, the question that I have that I think that I would like to have you address to some degree and that deals with if the number of...if the number of children continues to grow and when the number of dollars continues to diminish, do you think ...  do you feel that there's a possibility that we will end up mainstreaming a great many more of these children who have less disabilities and then deal more with those who have severe disabilities?  Do you think that that is a possibility of the direction this might have to go in order to cap those dollars?


SENATOR McKENZIE:  Senator Vrtiska, actually, one of the reasons the costs have been rising is because we have been mainstreaming those multiply handicapped children into the regular classroom by parents' requests.  That has driven the cost instead of reduce the Cost of providing special education services.  Remember, those...75 percent of the children we're talking about are not severely handicapped.  They have speech and language problems and they have mild learning disabilities.  The other 25 percent, of that other 25 percent it's really only 2 or 3 percent that have multiple handicaps, who require a lot of, you know, full-time attention and full-time high expense because of medical problems.  And I will stop there.


SENATOR VRTISKA:  well, I'm having a little difficulty in




understanding your comments about mainstreaming costing a great deal more.  If you put them in a regular classroom where they have regular teachers, it doesn't take extra special ed teachers in order to maintain those classes, does it?  I mean, I'm trying to figure out...  I know many years ago, many, many of these kids were mainstreamed, they came ...  they didn't get a very good education because they just sort of led them through the system and then turned them out at the end and then, as a result, we had an awful lot of kids who graduated from school who really didn't have an education because they didn't have anybody to attend to their special needs.  I'm talking about going back that same direction.  Is there a possibility these kids could be put back in regular classrooms without any special effort to give them a quality education and let them move on through the system?  That's my concern.


SENATOR McKENZIE:  Senator Vrtiska, in light of the number of .successful lawsuits, not in Nebraska but nationally, where a child was placed back in a classroom without appropriate, least restrictive environment, support and services, that's not going to happen.  If a child is placed back in the classroom for inclusion and often it's the parents' request, they are suppor ...  they are ...  have full-time staff member with them all the time.  In other words, a...


SENATOR VRTISKA:  Now you see what you...


SENATOR McKENZIE:  ...  special ed person goes with them.


SENATOR VRTISKA:  You see what you've done, you've trapped yourself, Senator McKenzie, because you said basically you can't do anything, that's federally mandated, that's court mandated.  And that brings up my question that I brought up a while ago.  How are you going to ingest those mandates that are handed down from the courts and are handed down from the federal government?  You know, you talk about flexibility, there is some flexibility but some of these are mandated requirements that you just talked about and I guess my concern is if that, in fact, continues to be, how are you going to cap?  And if you do cap, I guess I'm going back to my original ...


SPEAKER WITHEM:  One minute.


SENATOR VRTISKA:  ...  version and that is we're going to have local dollars that are going to have to be fed into the system


because I don't know how you're going to get around it.  That's what my real concerns are.


SENATOR McKENZIE:  Do you want a response, Senator?




SENATOR McKENZIE:  Well, first of all, one of the handouts I gave you shows the comparison between the federal mandates are and what Nebraska's rule and re regulations are in our state statutes.  The first column is the second and third are Nebraska's, and it doesn't take any reading time to notice that we have a lot more included in our state statute in rules and regulations than we are required to have.


SENATOR VRTISKA:  Okay, then what you're really saying is you're willing to reduce the number of available programs for these handicapped kids?


SENATOR McKENZIE:  I did not say programs, I said rules and regulations.


SENATOR VRTISKA:  Well, okay, but the rules and regulations are what the programs are in many instances.


SENATOR McKENZIE:  No, the rules and regulations, in many cases, are what we go through in order to identify (inaudible).




SENATOR VRTISKA:  Okay.  All right, thank you.


SPEAKER WITHEM:  Senator Crosby, followed by Senators Maurstad, Beutler, McKenzie, Bernard-Stevens, Robinson and Chambers.


SENATOR CROSBY:  Thank you, Senator Withem.  Sounds like I turned my light on at the right time or something.  I've been listening because a lot of the questions I had were answered, so Senator McKenzie, relax, I'm not going to ask you any questions.  I'm just going to explain a couple of things so you understand why I'm not going to vote for the bill.  I feel like this is another one of those bills that is brought to us to make it look like we're really doing something for taxes, we're trying to help the school budget.  And what I feel we're doing is working at taking away some local control.  We hear all these things




about it's...we're changing the way we will deliver services.  That's a wonderful buzz word these days.  But remember that this is federally ...  special ed is federally mandated.  The funds originate with the federal government and if we lose...  if we are not...  if our school districts are not reimbursed more or at the same level as they are now, that will cost the local districts unless they cut out services.  And so that's what I feel.  I put on my little pin this morning, Children First immediately, because here again I think we are forgetting about the children.  We are always concerned about the mechanism, about the rules, about the regulations, and how can we help the school districts and/or anyone who happens to be involved?  I don't think this bill is going to help.  I don't think it's going to reach the goal that the introducers say it is.  I don't think it's going to help with the services being delivered any better.  I don't think it's going to help the school districts in cutting expenses.  When you look at the handout, most of the money goes to salaries.  You have to have the teachers to teach the children no matter whether they're handicapped or not-, you have to have teachers.  And that's always in the school budget, salaries is the big item.  You will notice on the hearing committee statement only two people proposed this bill, the introducer and the Lieutenant Governor in behalf of the Governor.  Everyone else who came in opposed the bill, educators, administrators, everyone came in and opposed the bill.  It's because it's against children.  And I know that the introducers aren't going to like that when I say that but it is, because you're not thinking of the children that you are serving.  There's a lot of parents out there that are very apprehensive right now over this bill because they think the 16 to 21-year-olds eventually may be left out.  The other thing, I don't like this idea of saying, well, health problems aren't a handicap.  Certain health problems can be a handicap, especially to a child when that child is developing., So I think we just have to be very careful and when you look at the percentages, 25 percent, I think Senator McKenzie said, are the severely handicapped children.  All of us know that even though that sounds like a small percentage, and it is, that it costs more to educate those children because you have to have equipment, you have to have more space, you have to have special teachers and we chose, a long time ago, this decision was made a long time ago, to educate these children.  They deserve an education.  Many of them respond in such a wonderful way that eventually when they go into the workshops or whatever they do in later life that education has helped them and they've been with




children of their-own age and so on instead of being isolated in .some other environment.  So I just wanted to say these things.  In the guise...


SPEAKER WITHEM:  One minute.


SENATOR CROSBY:  ...  under the guise of refining procedures, be very careful so those children don't get left out.  And the other ...  the last thing I will nay, we are again overcoming what I think of as local control.  It's the same thing on the welfare bill.  The teachers, the administrators, the school, the local school knows who their students are.  They know what those students need, some state committee does not.  And when you're looking at rules and regulations and trying to decide what we'll do about this child or that child, that's micromanagement over the local school district.  I just do not like that.  I cannot support it.  And so I wanted you to know why I'm going to vote red all through this procedure today on LB 742.  1 know you've spent a lot of time on it and I know you're very sincere about it.


SPEAKER WITHEM:  Time.  Senator Maurstad.


SENATOR MAURSTAD:  Thank you, Mr. Speaker.  Is Senator Bromm on the ...  could I ask Senator Bromm a question or two?


SPEAKER WITHEM:  Senator Bromm, would you be interested in responding?


SENATOR BROMM:  I sure would, Mr. Speaker.


SENATOR MAURSTAD:  Senator Bromm, in the amendment that we're looking at, in Section 2, line 14, we talk about adequate resources being made available to these ...  to the students.  And as we ...  as we all know that the courts really play as much of a role in all of this as do the laws that we make and I was wondering if you could comment on how you think that the courts will interpret an intent statement that we're going to provide ,adequate resources to meet these needs.


SENATOR BROMM:  Of course, it is intent language and we know .that that has...has some effect on how the court interprets the law that we eventually pass, but my...  I guess my opinion would be that what the courts might say is that we are saying that through this block grant system we're still going to stand




behind our responsibility that there are adequate resources to meet the unique needs or handicapped needs of children, students.  That's ...  does that answer?


SENATOR MAURSTAD:  Yeah, so you don't think that if we determine to spend, you know, X number of dollars that putting in intent language that we're going to provide adequate resources would provide an avenue for somebody to challenge whether or not the resources that we provide through the block grant program are, in fact, adequate or not?


SENATOR BROMM:  If the services aren't provided to the level that the law requires, whether that be federal, state or court decision, then there will be, in many cases, a lawsuit and the question could become whether or not we did provide adequate resources to that district to meet those needs and whether or not that district, in fact, used those resources prudently or not.  I could see that being an arguable point and, of course, if we don't provide enough block grant money for them to use it to have enough to even begin to meet the needs then I think the state would be involved as well in that suit.


SENATOR MAURSTAD:  And I think I would just like to, for some ...  for all of us to consider whether that phrase needs some ...  needs some work or not, whether or not we're opening a can of worms.  Next, if we...I want to expand a little bit on something that Senator McKenzie brought up relative to the next statement where without the requirement that students be identified or verified, in other words, the funding isn't going to...  isn't going to hinge upon that.  And then down in Section 3 we bring in how we're...  that we're going to develop an accountability system that will ensure that the dollars are being used appropriately.  What ...  what's your, as the, you know, since this is your priority bill, do you think that is something that is workable, is going to, in fact, provide more flexibility at the local level?  Or do you see it as poss ...  the potential for the state becoming more heavy-handed...


SPEAKER WITHEM:  One minute.


SENATOR MAURSTAD:  ...  in this area?


SENATOR BROMM:  Senator Maurstad, I apologize, I thought you were asking Senator McKenzie the question.  Someone was talking to me.  Could you briefly restate it?




SENATOR MAURSTAD:  Well, we probably don't have time, so let me just...  I'll just restate one of my concerns relative to the...  I would like to give the local school districts flexibility and make sure that we are, in fact, doing that.  And so I want to make sure that we coordinate in 742 that we provide flexibility without placing too heavy of a hand of the state on the shoulders of the school districts and making this work.  Thank you, Mr. Speaker.


SPEAKER WITHEM:  Thank you, Senator Maurstad.  Would like to recognize groups of students in the north balcony.  First of all, from one of the two finest communities in the State of Nebraska, we have from LaVista, from G.  Stanley Hall Elementary School, 75 students and their instructor.  And we also have from District 10, Columbus, Nebraska, 25 eighth graders from Senator Robak's district, and their instructor.  Welcome to all of you.  Glad to have you here.  Senator Beutler.


SENATOR BEUTLER:  Senator Withem, members of the Legislature, I just wanted to state briefly why ...  why I support this bill very strongly and why I.  think people who are interested in children with disabilities and helping children with disabilities should support this bill very strongly.  I believe, very clearly, that things go in historical ...  very strongly that things go in historical cycles and we try to do things for the good of people and certain groups of people and then we go a ways in that effort and usually it costs some money.  And then there's a backlash and when that backlash comes you've got to stand up and tell people why you're spending money, why it's a good thing, and you've got to be able to look them in the eye and saying...  and say to them, we're doing it in the smartest, wisest way it can be done and it's worth doing.  Periodically, all of the programs that we have go through these phases whenever it comes to the point in time when the property taxpayers are in revolt with respect to local matters, or when there's revolt against the sales and income tax.  And if you're willing to continue that support, or if you want additional support, if you, believe in those things, you're not going to be able to convince the public to do that unless you can first convince them that you've looked at the programs that are costing so much money, that you've looked at the welfare program, that you've looked at the disabilities education programs and they're solid.  They're good.  We've looked at everything.  We laid everything on the table.  We were critical of everything and we can say they're




solid.  If we can't do those things, we are, in fact, long term jeopardizing those programs.  Now it's interesting to me that with respect to children in the welfare system who are no more or less innocent than children with disabilities, no more or less innocent, with respect to those children, we're going through very thoroughly 29 waivers and a whole discussion of the welfare 'program.  Because the kids are cheating?  Well, obviously not.  We're doing it because the welfare program is in question, because the public wants to know if we're spending the money wisely and they have a right to know that and we should do that for them.  With respect to children with disabilities, I think we need to go through the same process.  We need to be very candid.  We need to be very objective and we need to say what needs to be done, but we need to say that after saying, yes, we have thoroughly reviewed the situation, we've looked at everything, we need to do this, the way we're doing it, and maybe we need to do more.  But you're not going to sell more until you've convinced them that what you're doing is the right thing.


SPEAKER WITHEM:  Senator McKenzie.


SENATOR McKENZIE:  Senator Withem and members of the body, I wanted to address a couple of comments I heard in the debate and I will be brief so that other people can continue to ask their questions.  First of all, I want to make clear that my intention, as the introducer of this legislation, is not to take the civil rights away from these children but to guarantee that the money that the state provides gets to these children, and I will tell you that over the past 20 years this has become a well solidified bureaucracy of rules and regulations.  And I challenge you, if you haven't had a chance to read the 85 pages of rules and regulations that Nebraska has, to read through them.  We have added so many things in the last 25 years that we have actually handcuffed the very people who deliver services to children.  We have to have X number of people at X number of meeting and have X number of tests to verify a child with a language disorder that clearly the classroom teacher could see day one.  We have to retest a child who's diagnosed with Down's syndrome six times to make decisions about what should happen for them in schools.  We tell schools exactly what to do for every child.  In fact, those teachers who write IEPs have a computer program and they just plug in the things for each child when they do their IEPs.  So I would disagree with Senator Crosby's statements that we are taking local control.  What we




are trying to do here is give back local control.  We are trying to say, we are going to give you money to do what you need to do.  We're going to trust that you, as a district, know the resources that you have.  You have every teacher in your district who has a dual degree, special education and elementary education, or some other combination, and you don't need to have a specialized classroom over here, you can use your special education teacher as a consultant.  We want to give some flexibility back to allow districts to make those decisions, to allow districts to collaborate in ways they haven't been before and to allow regular classroom teachers, and I will challenge you to read the history of special education, it was always intended to be a partnership, a partnership between general education and specialized teachers.  What has happened in the 20 years is we have two separate bureaucracies and in Nebraska two separate funding systems, two separate accountability systems, two separate classrooms.  If I can't handle the child in my classroom and I'm the third grade teacher, then I can go to the special ed director and ask for an SAT meeting and the team gets together and we talk about the problems and we refer that child for special education and they're verified, then we can deliver services, then we start talking about what to change.  And what I really love in Nebraska's process is that we say, if you're a Level 1, you get three hours a week, you get Monday, Wednesday, Friday, an hour a week, somehow in this wonderful, wonderful hour today, an hour Wednesday, an hour Friday, you are going to come back to the regular classroom and be just fine.  You're special education three hours a week and the rest of the day and the rest of the week you're in the regular classroom doing the same thing as everyone else.  This amendment and this study process, I remind you, this is not the specifics, this is how do we change what has become a rigid system into one that makes more sense for kids...


SPEAKER WITHEM:  One minute.


SENATOR McKENZIE:  ...  so that we can turn around and actually, see some accomplishment and that we can see where regular classroom teachers can be as important as the person who carries the title of specialist.  But it is not about taking control away, it is about giving control back.  It is about a process that will involve hundreds and thousands of people from now until next December and into next session to find a better way, a better way to fund.  We're not ...  we're not limiting ...  we're not cutting funding, I remind you, we're allowing funding to




grow at the same rate as general education.  So you're going to get 1059 money and you're going to get your special ed money with the allowance for 3 to 5 percent growth.  It's not a cut, it's a limit.  You can't spend 10 percent, but we also talked about looking for ways to allow for those extreme cases to be dealt with.  I believe it's time that we...




SENATOR McKENZIE:  ...  looked at the issue through this process.


SPEAKER WITHEM:  You're right, it is time, Senator McKenzie.  Senator Robinson.


SENATOR ROBINSON:  Call the question.


SPEAKER WITHEM:  Do I see four additional hands to Senator Robinson's?  I do.  Would...  the question is, shall debate now cease?  All those in favor vote aye, opposed vote nay.  Have you all voted?  Record, Mr. President (sic).


CLERK:  12 ayes, 11 nays to cease debate, Mr. President.


SPEAKER WITHEM:  Debate is not ceased.  Senator Chambers.


SENATOR CHAMBERS:  Madam, I mean, Mr. President and members of the Legislature, I was talking to Senator McKenzie and Senator McKenzie has a way of just engulfing me and I think only about her after I've gotten through talking to her, so, Mr. Speaker, please overlook that slip of the tongue.


SPEAKER WITHEM:  I would have if you had not made such a big deal of it.  (Laughter.)


SENATOR CHAMBERS:  That's what happens, nothing gets the duck in trouble but his bill.  This is one of those pieces of legislation that I have very strong feelings about because of the subject that is being dealt with but I haven't gotten into the discussion.  I'm not going to...  I'm going to try not to have a lot to say until I see what direction the bill goes.  But my problem with all of these kind of efforts is that we're dealing with what I call a vulnerable group and whenever it becomes necessary for political reasons or any others to say we've got to cut some funds, we look for those vulnerable groups and this will be the one.  When you get to that point where you say the




Legislature will decide the level of funding, I look at that as creating a private preserve.  All of the other programs are like the wild animals running loose and the hunters want to get trophy heads.  Well, it's too difficult to go out there because these animals have knowledge of hunters and they stay out of the way.  So then we look at this area where we're dealing with handicapped children and they are like those privately owned preserves where they raise animals in captivity, they pen them in, then they let the brave white hunters go out there and shoot them like ducks in a barrel and get their trophy heads.  This will be the program where the captive trophy heads will always be found.  There are people of means who have no objection to shifting responsibility when it comes to how taxes will be derived but they're opposed to redistributing the wealth of the society and what we're facing now is a matter of priorities.  There is a study that came out and it reflects what has been known down through the years.  The wealthiest 1 percent, the wealthiest I percent of the people in this country control 40 percent of the nation's wealth.  One percent controls 40 percent.  The top 20 percent of the people control 80 percent of the country's wealth; 20 percent of the people control 80 percent of the country's wealth.  When you get to the lower 20 percent of the population in terms of means, they control 6 percent.  One percent at the top controls 40 percent.  Expand that to the top 20 percent and they control 80 percent.  You get down to the bottom 20 percent of the population and they control 6 percent.  So the wealth is there but it's in too -few hands and that's why we have problems of this kind.  We're not willing to go after the people with the means.  You talk about property tax relief, you have double dippers like Jaksha and some of these other people who want the benefits that society as a whole make available to property owners, streets, street lights, fire, police and all these other things, but they don't want to pay for it.  So when we have a bill of this kind I'm going to watch very carefully and see if, as some of those who support it are saying, that the money is going to be directed toward the children who really have the needs and that, by doing what this bill attempts to do, they're not going to be hurt.  What I see happening though is when you put a responsibility on one of these state departments who undertake studies and so forth, they're going to hire very expensive consultants.  They're going to say in their department they lack the person power and the persons they have lack the expertise so they've got to hire some of these consultants ...




SPEAKER WITHEM:  One minute.


SENATOR CHAMBERS:  ...  and they will blame it on what the Legislature has done.  So before I would agree to allow any agency or department to determine that rules and regulations relative to that department are superfluous I don't think we ought to give it to those who have that direct interest.  But, again, these are questions of mine which have not yet been addressed, maybe they will be, but I'm going to listen a lot because my feelings are too strong on the issue to participate actively in the discussion at every stage of the debate.


SPEAKER WITHEM:  Senator Bernard-Stevens.


SENATOR BERNARD-STEVENS:  Thank you, Mr. Speaker.  I move we recess until one-thirty this afternoon.


SPEAKER WITHEM:  You've heard the motion.  All ...  excuse me, Mr. Clerk, you gave me that look again.  Do you have any items for the record?


CLERK:  Mr. President, thank you.  Attorney General's Opinions, one to Senator Dierks (re.  LR 6, LB 337 and LB 613).  Reference Report referring gubernatorial appointees to the Standing Committee for confirmation hearing.  Bills read on Final Reading this morning have been presented to the Governor (re.  LB 178, LB 178A, LB 42, LB 109, LB 109A, LB 123, LB 339, LB 470, LB 614, LB 87, LB 145, LB 350, LB 407, LB 65 and LB 240).  Senator Hartnett, amendments to LB 303 to be printed; Senator Hall to LB 530.  Enrollment and Review reports LB 872, LB 265, LB 146, LB 146A and LB 397 to Select File.  That's all that I have, Mr. President.  (See pages 1707-29 of the Legislative -Journal.)


SPEAKER WITHEM:  You've heard the motion.  All in favor say aye.  Opposed.  We are recessed.






SENATOR CROSBY:  Good afternoon, ladies and gentlemen, and




welcome to the George W. Norris Legislative Chamber.  Roll call, please... senators, please record your presence.


CLERK:  I have a quorum present, Madam President.


SENATOR CROSBY:  Thank you.  You have some items for the record?


CLERK:  Madam President, Legislative Program Evaluation Committee reports LB 886, General File with amendments; LB 450, indefinitely postponed.  And Enrollment and Review reports LB 572, LB 514, LB 669, LB 499 to Select File, some having Enrollment and Review amendments attached.  That's all that I have, Madam President.  (See pages 1730-31 of the Legislative Journal.)


SENATOR CROSBY:  Thank you.  We're on LB 742, on the amendment to the committee amendments from Senator McKenzie.  Mr. Clerk, is there anything else?  I should just go ahead?  Senator Bernard-Stevens, your light is next on the McKenzie amendment.


SENATOR BERNARD-STEVENS:  Thank you, Madam President, members of, the body.  Just a couple of comments on the amendment that we have before us.  A little, I guess, more for the record and maybe so the body knows a little bit more about the process of how this amendment came to us today.  It really has been quite a long and involved process.  You had a task force that was meeting over the last couple of years and actually one of -their recommendations for pilot projects and block grants came to us this year in the bill 623, it opened up the public hearing.  And we had a good discussion and a broad-based discussion on the concept of block grants and what should go into it and what we'd want to test and do.  And while that is going on we also had a meeting where many of us, Senator McKenzie, Senator Bohlke, myself, the legal counsel from the Education Committee and others, Senator Wickersham, were down into a Conference of the States at NCSL and we brought together, at that point, some of the best minds in the areas of special education, nationally, some of the best people that were involved in special education, .trying to make the best impact for students identified with special needs, as long (sic) as trying to get a handle on the concepts of cost-control, and even the concept of controlling the costs more so it goes into the program rather than in some of the other areas.  And that's where Senator Hartnett's question on where the increased costs are coming from, I think, was so pertinent to the question.  We met with people, we looked




at what a lot of the other states were doing successfully, not only in helping on the budgetary costs, but also shoring up the programs that they had so that monies flowed better into the areas, children were getting more specifically the needs that they had, the system was streamlined and actually they found they were doing more for their children in special education than they were previously.  We then took those ideas and the ideas that were before us in LB 623 and met with many of the education people throughout the state, as we could at least, here in Lincoln, brainstormed, met with others, did rough drafts, ran it by other people certainly within the education field, the special education task force, members of the Department of Education and so on.  And we ended up with the amendment that we have before us.  So it really has been very much a collaborative effort.  It's been very much an effort designed not only to try to get a handle to be more effective in how we spend our monies, but more importantly to protect and to make more effective the programs in the treatment ...  not the treatment, but the education of those students that have special needs.  And I wanted to try to get that historical concept at least into the record.  The idea, for the most part, is that we wanted to have the most efficient special education program that we can have and the best quality that we can have.  We're not about trying to take people out of programs, we're trying to help transfer costs and administer Costs in a way that will improve the type of education that we're giving to these students and that is the goal.  At the same time we believe we can do so and make those changes that will be necessary to try to got some type of control on costs as well.  I also want to mention that there obviously is a time where we're going to have to answer the question, are we going to be able to give the schools enough flexibility and are we going to be comfortable that the programs of quality will be...will not be diminished in any way...


SENATOR CROSBY:  One minute.


SENATOR BERNARD-STEVENS:  ...  and still be able to work under the ...  under the cap or lids that we may have on spending?  And quite honestly, those decisions will be made, I would think, next year.  And we may decide that we can't continue to go in this particular direction.  But at the same time we have to move in a direction, we can't stay where we are now.  We believe that this is a way that we can go that will take us into a better position, not only in finance, but in the areas of education.




And I believe it is a good first step, it's not the final step, it's not the only step.  There are other directions that we may end up taking.  As you look Closely in the bill it says if the block grant concept is not going to work, let's come up with the other alternatives that will work.  And we're saying that we believe this is the concept that will take us the way we need to go, but we're not closed to the idea that there may be other ways and better ways to do so.  And with that, I would urge the adoption of the amendment and also the advancement of 742.


SENATOR CROSBY:  Thank you, Senator Bernard-Stevens.  Senator Schimek, on the McKenzie amendment.


SENATOR SCHIMEK:  Yes, thank you, Madam President, members of the body.  First of all, I don't know a lot about the particulars of how special education is delivered in our state.  I do know and understand the rising costs and I do, commend Senator McKenzie and Senator Bernard-Stevens and others who have been working to try to find a different way of delivering these services.  But at the same time I do have some questions in my mind, and Senator McKenzie, you did have a dialogue going this morning and I would like to ask just a few questions to follow up on some of the things that you said this morning so that I can understand perhaps better how this will work.  In your...


SENATOR CROSBY:  Senator McKenzie.


SENATOR SCHIMEK:  Thank you.  In your comments this morning you talked about the fact that a particular student might be in a situation where three times a week, on Monday, Wednesday and Friday, that student would spend an hour with a teacher working on a particular area that was needed for that particular student.  And my question to you was ...  is, you didn't take that any further.  What ...  how will that be different under the system that's envisioned by this bill?


SENATOR McKENZIE:  Senator Schimek, that particular approach is referred to as frequency and duration.  It's one of the ways in which a school district categorizes and catalogues the amount of time given to each student as to which level of services they qualify under.  If in fact we move to a block grant approach, districts will make decisions in that IEP process for individual students, based on their individual needs.  But we would not require a district to keep track of frequency and duration for every student in Level 1 services, for example, in order to




get ...  qualify for that money.


SENATOR SCHIMEK:  Qualify for funds?


SENATOR McKENZIE:  Right.  So if in fact we have...  if I can take 30 seconds where...


SENATOR SCHIMEK:  Sure, I want you to.


SENATOR McKENZIE:  If we have, for instance, a student who truly needs an hour a day of specialized skills training because they are dyslexic or because there's a specific learning disability that would be built into the IEP.  But on the other hand, if it's a child who could benefit more from the special expertise of a classroom teacher, who in collaboration with the special education teacher, developed the IEP for that to happen throughout the day and that classroom teacher was able to manage that in their classroom format, that might be the way in which they write that IEP.  Currently, we're restricted from doing that.  It's how many times a week you meet and how many hours you're provided services.  It doesn't change...  it doesn't limit you from doing what you are currently doing, but it allows more flexibility for other instances.


SENATOR SCHIMEK:  What happens if the parents of a particular child don't feel that their school system is meeting the needs of that child?  What options then do those those parents have?  Same as they do now?


SENATOR McKENZIE:  Correct, nothing in the change of block grant from reimbursement changes any of the civil rights that those parents and children have as a child with a disability.


SENATOR SCHIMEK:  Okay.  As we go down the road we're probably going to have fewer funds on maybe a per capita basis, as we go down the road.  I mean part of the idea...


SENATOR CROSBY:  One minute.


SENATOR SCHIMEK:  ...  idea here is to try to become more efficient.  If the funds become tight there probably will have to be some cuts in some services, I would suspect.  And my fear ,is that those students who may be the borderline students, that maybe aren't truly special ed but have been getting some special services from the school system because of two of the things




that you just mentioned, learning disabilities and dyslexia, and I'm afraid that they may get lost in the shuffle, and those often times are the students that we can really impact on.  And we don't have time now for you to respond, but maybe you would as you continue on this afternoon and allay some of my fears in that regard.


SENATOR CROSBY:  Thank you, Senator Schimek.  Senator Maurstad, on the McKenzie amendment.


SENATOR MAURSTAD:  Thank you, Madam President.  If Senator Bernard-Stevens could respond to a question.




SENATOR MAURSTAD:  Senator, part of, it seems to me a basic, underlying premise that is a part of this legislation is the assumption that we'll be able to maintain funding for special education at the same level of growth as general education.  And I was...  I would like you to respond to that assumption and whether or not it is a reasonable one, and whether it is one that we should develop this legislation upon.


SENATOR BERNARD-STEVENS:  I appreciate that.  And, Senator Maurstad, to respond I'm going to need a couple of minutes.  But I went ahead and punched my light so if we run out of time I can yield you more ...  I can yield you then my time so you can finish, if that's appropriate.  Senator Maurstad is correct and it's one of the concerns I've had all along, all the way through it, is what is the future of block grants and can we maintain, for example, the funding that we have?  To answer the question in the proper way I think the best is to focus it on the development of how we are.  And the people that are most closely associated with the special education actually came to us and said, us being the Education Committee and those of us involved in education, and said, which all of us are.  but those of us that have been looking at this particular bill.  And their recommendation was that we believe this may Ye a concept that can work.  And, Senator Maurstad, what their view was that they believed that there were things that they could do that could become more efficient, that would be less cost ...  that would be less dollars that they would have to spend and still meet all the things that they wanted to, but they wanted to have the flexibility to do so.  And so they came forward and said, we'd like to try the block grant concept, we believe it will




work, but it will only work if we have the flexibility to do some of the things that we feel we can do on the evaluations and on some of the other criteria that they mentioned, that Senator McKenzie spoke so well of this morning.  So I believe that it would be more accurate to place the concept of the bill as saying we're going to give to the local people that are in control of special education and those entities that are in control the ball for a while and see if they can do what they believe they can.  If they can change some of the concepts of how they do things, change the way that we do on Rule 51, which is an absolute foreign language to read, they believe and at this point I believe that they're going to be able to find a better way of spending the dollars that we have so that.  we can stay within the cap.  But I would be the first one to say, David, that you share the same concern I do and my position has always been that if we find that there isn't that flexibility that we thought might be there, if the changes that are proposed cannot fit within the cap then I would not be one of those that would stay within that area.  I'd be one to say we need to pull off and go to it and look at a different direction.  That's the best that I can do at this point.  Obviously it's on your time, Senator Maurstad.


SENATOR MAURSTAD:  Well, and I appreciate that response and I think it's important that the body recognize that we're making a rather broad assumption here, and based upon more of a goal that we're targeting than any empirical I data that would indicate that we could...


SENATOR CROSBY:  One minute.


SE SENATOR MAURSTAD:  ...  reduce ...  we could reduce the spending in this area to the same level as general education.  So I think it's important that we have laid out and that not only as this discussion goes on, but as we continue to revisit this issue in the future that we keep in mind that the basis for which we're trying to restrict the funding for this program.  Thank you, Madam President.


SENATOR CROSBY:  Thank you, Senator Maurstad.  Senator Robinson, on the McKenzie amendment.


SENATOR ROBINSON:  Madam President, members of the body, Senator McKenzie, you're doing a great job and I want you to continue.  I have a few little questions for or you.




April 19, 1995 742


SENATOR CROSBY:  Senator McKenzie.


SENATOR ROBINSON:  How much money do we spend on the birth to 3-year-old program?


SENATOR McKENZIE:  Senator Robinson, most of that money comes from the federal level, it is ...  many...  I can't give you the exact numbers.


SENATOR ROBINSON:  You mean it's not the 90 percent thing?




SENATOR ROBINSON:  Schools don't pay any of it?


SENATOR McKENZIE:  I will have to check on that, but most of it is...


SENATOR ROBINSON:  Could you do that and let me know?


SENATOR McKENZIE:  Right (inaudible)...


SENATOR ROBINSON:  How about the 18 to 21-year-old program?


SENATOR McKENZIE:  Well that's constitutionally required, and again I'll have to look up those (inaudible).


SENATOR ROBINSON:  Do we have to do that?


SENATOR McKENZIE:  It's constitutionally required, yes.


SENATOR ROBINSON:  Oh, I thought in some comments made earlier we didn't have to do that.  Okay.  You know what the administrative cost is of special education?


SENATOR McKENZIE:  Senator Robinson, no, I do not.


SENATOR ROBINSON:  Could we get that figure?  I think we should have that figure to visit about.  I've been trying to get it, I can't get it, but hopefully we can.  I want to go back to the one thing I was talking about this morning where we have the Chapter I programs, I want to talk to you, Senator McKenzie.  You're using my time, come on.  (Laugh.) I'm urging you back to your mike.




SENATOR McKENZIE:  I'm sorry, Senator Robinson, (inaudible).


SENATOR ROBINSON:  Why do we have ...  why do we have a Chapter 1 program and we spend $355,000 in the State of Nebraska just on the administration of it?  And it's for children that have problems with reading and mathematics.  And I don't know how many different resource rooms I've been in my life, but I've been in a lot of them, and there are special education programs and basically they do the same thing.  Why do we have the ore program on this side and the one program on this side?  God only knows how much we spend on administration on those.  But that's where the cost of special education is.  That's the big cost ...  one of the big costs in special education.  Why do we have both programs?  Isn't there some way we can combine them?  Can we get a fe...  is there such a thing as getting a waiver to combine those?


SENATOR McKENZIE:  Senator Robinson, we cannot apply for waivers to the idea act, which is basically the federal regulation.  The reason that we have two different programs, one was created at the federal level.  Chapter 1 does not require that you have a disabling condition.


SENATOR ROBINSON:  Well they're both federal programs, they both came from federal mandates.


SENATOR McKENZIE:  Well, they both...


SENATOR ROBINSON:  One of them in '63 and ...  go ahead.


SENATOR McKENZIE:  Correct, but Chapter 1 was originally funded a the federal level to allow for additional help to children who would not qualify for special education as a handicapped child but required some additional help in math and reading so that they would not fall out of the system.


SENATOR ROBINSON:  What's the difference between that?  What's the difference between those?  I've never ...  no one has ever been able to answer that, give me that answer, and I'm not sure we even have an answer, outside of you got three or four people in a room Baying, boy, they belong in that resource room, they don't belong in Chapter 1, or maybe you got too many kids in Chapter 1 and you don't have room for them or something, I don't know.




SENATOR McKENZIE:  Well, Chapter 1 does not require that you be identified an a handi ...


SENATOR ROBINSON:  No, you're placed in there because of a test.


SENATOR McKENZIE:  Right, it's your...  it's the difference between the average performance in math or in reading and that child's score.  So you can qualify for Chapter 1 where you may not qualify for special education.


SENATOR ROBINSON:  I want to go to another.


SENATOR CROSBY:  One minute.


SENATOR ROBINSON:  The ...  there was some wording change that instead of special education was changed to special students.  Now is that to include something so we include gifted in this, or ...  because they are special students, too.


SENATOR McKENZIE:  Well, Senator Robinson, I'd argue all students are special students, but, no, we are not...


SENATOR ROBINSON:  I wasn't a special student.  (Laughter.)


SENATOR McKENZIE:  I'm sure you were.  (Laugh.)




SENATOR McKENZIE:  No, we are not attempting to add new categories under our state statute.


SENATOR ROBINSON:  I just ...  yeah ...  but why was it changed then?  It's a unique word then.


SENATOR McKENZIE:  Are you referring to students...


SENATOR ROBINSON:  Special ...  why the word "special student" was put in?  I have one...


SENATOR McKENZIE:  A language choice.


SENATOR ROBINSON:  I'll try to squeeze this one in before my next...  I can't believe it.  Have I gotten my full five minutes, Senator Crosby?  I can" believe I'm that close.




SENATOR CROSBY:  Your time just ran out (laughter), Senator Robinson.


SENATOR ROBINSON:  Can I have some of yours?  (Laughter.) I'll punch my button again.


SENATOR CROSBY:  I said a minute ago that you had one minute.  (Laughter.) Thank you, Senator Robinson.  Senator Hartnett, on the McKenzie amendment.


SENATOR HARTNETT:  Madam President, members of the body, Senator McKenzie, this morning you impressed with me with the book that says the rules and regulations regarding special ed, you know that is sitting to your left, as I look down there.  And I guess, you know, and I'm thinking back and years I've been here I don't think we've dealt with special ed that much.  You know, what is ...  what has caused that book to be so big?


SENATOR CROSBY:  Senator McKenzie.


SENATOR HARTNETT:  Of the rules and regs, is it...  is it things that the Department of Education has done?  Is it things that we have done, that the federal government has done, because I think that's part of the problem and maybe, you know, something that I think Senator Robinson was talking about is that, you know, quote, this administrative cost, if we've got to jump through all the hoops that are probably in that manual or chapter, I think that maybe is part of the problem that we have with the high cost of special ed.  So if you want to respond to that, and if I have any other time I'll give it to Senator Robinson, since ...  but if you're like to, Senator McKenzie.


SENATOR McKENZIE:  Senator Hartnett, I think you've just encouraged me to be very lengthy in my response.  (Laughter.) Let me just run down for you the legislation that has been passed since 1983, that we have passed, since 1903, that has affect...  since 1983 that has affected our rules and regs, or state statute.  In 1983 we passed LB 511 that changed the judicial review procedures, and I'm not going to rattle all these off.  In 1985 another bill was passed dealing with residential care services.  In '86 there were one, two, three, four, four bills passed, a fourth Special Session LB 2 that dealt specifically with special education; 1987 we passed three piece of legislation dealing with special education; in '88 we




had one bill; in '89 we had two pieces of legislation passed; in 1990 we passed three; in 1991 we passed three bills; in 1992, in the Third, Special Session, LB 15 was passed; and in 1993 we passed three pieces of legislation dealing with, special education.  Many of those state statutes required revisions In Rule 51, but Rule 51 has also been revised numerous times to include more, and more, and more specifics about how a child is verified, about who has to be there, about the tests administered, about the appeal process, on and on.


SENATOR HARTNETT:  But can know, do we need to look back, I guess another question, we need to look back at the legislation we passed, I think you said since 1983?  And can we streamline it, you know, is it outdated, outmoded or....


SENATOR McKENZIE:  I believe that's what we're attempting to do in Section 1 of the amendment.


SENATOR HARTNETT:  Okay, thank you.  If there's any time I'll give it to Senator Robinson.


SENATOR CROSBY:  You have about a minute and three quarters.


SENATOR ROBINSON:  I can't even get started in that.  (Laughter.) But I'd still like to say ...  you shock me, Senator Crosby, I'm sorry.  Madam President, members of the body, I was asking my colleague, Senator Brashear, I said, have you ...  we're talking about grants.  I said, you ever given yourself a grant?  Yeah, he says.  What happens when you use it up?  He says, there ain't no more money left, he says.  I'm ad-libbing a little.  But anyway, basically would that be a good answer, Senator McKenzie....


SENATOR CROSBY:  Senator McKenzie.


SENATOR McKENZIE:  Senator Robinson,


SENATOR ROBINSON:  ...  instead of this ...  instead of this percentage raise every year or ...  basically is that what we're talking about when we're talking about the grants?


SENATOR McKENZIE:  Actually the block grants is just the way in which we deliver the money to the system.


SENATOR CROSBY:  One minute.




SENATOR McKENZIE:  The system still, through its negotiations, makes decisions about salary.


SENATOR ROBINSON:  Okay, so they got to get everything out of that grant then, that's what you're saying?


SENATOR McKENZIE:  Well currently those special education salaries are included in the excess cost formula as well..


SENATOR ROBINSON:  Okay.  And I got one other question I'll try to squeeze in here.  The ...  the increase is limited to how much the specific school district increases their budget?


SENATOR McKENZIE:  No, Senator, it's allowed to increase at the same aggregate average as general education spending.


SENATOR ROBINSON:  Average for the State of Nebraska?


SENATOR McKENZIE:  That's correct.


SENATOR ROBINSON:  Now if we pass the lid bill, the lid bill is what, 4 to 5.5 or something, isn't it?


SENATOR McKENZIE:  Senator, we're talking about the amount that...




SENATOR ROBINSON:  We've just begun.  Thank you.


SENATOR CROSBY:  Senator McKenzie, your light is next.


SENATOR McKENZIE:  Senator Robinson, let me attempt to finish answering your question.  We have allowed that growth will take place at the same rate as general education growth, not the same rate as general education spending, as that growth, average growth allotment is determined, allowable growth amount.  So collectively the entire pot of money, that 122 million, we'll get 122 million, plus if it's 5 percent it's 5 percent, 122 million plus 5 percent, which is what we would allow general education to grow also.


SENATOR ROBINSON:  Now are you talking about the accumulation of property tax plus any increase in state aid?




SENATOR McKENZIE:  Would you repeat that.


SENATOR ROBINSON:  Are you talking about the increase of property tax for all the school districts in the State of Nebraska plus that annual increase in state aid, what that percentage would amount to from the ...  compared to the previous year?


SENATOR McKENZIE:  Senator, we're looking at the amount of growth that's allowed right now under 1059 funds and general education growth, every year.


SENATOR ROBINSON:  General education would be property tax, right?  Is that...  is that correct?


SENATOR McKENZIE:  Well, it includes property tax and income tax rebate and 1059 equalization funds and special education, ...




SENATOR McKENZIE:  ...  all those things...


SENATOR ROBINSON:  Okay, but it is an average of a!.' the schools in the State of Nebraska, not just the one school that...your own school.


SENATOR McKENZIE:  That's correct.


SENATOR ROBINSON:  Okay.  I don't want to take any of your time.  I'll wait for mine.  Thank you.




SENATOR CROSBY:  Thank you, Senator McKenzie.  Senator Stuhr.


SENATOR STUHR:  Yes, Senator Crosby and members of the Legislature, I still have some concerns about the amendment and I'm hoping that Senator McKenzie will be able to answer some questions.


SENATOR CROSBY:  Senator McKenzie.






SENATOR STUHR:  On Journal page 1393, line 26, referring.  to it says, how to provide for the financial support of students with extremely disabling conditions and extraordinary needs which result in high cost.  What do you mean or what is meant by extraordinary needs?


SENATOR McKENZIE:  Let me just give you an example.  Some of the children who are qualified under special education and are in inclusion now in our class rooms are labeled medically fragile children, they require full-time medical attention, including deep trachial suction, monitoring of body functions, I mean they are multiply handicapped children.  And those are considered extraordinary needs, very expensive.


SENATOR STUHR:  All right.  Does anywhere refer to providing some funds for gifted children under this program when we're talking about special needs?


SENATOR Mc KENZIE:  No, Senator Stuhr, and in fact I mentioned earlier this.  morning that the language "unique needs" will be addressed in an amendment on Select File to students with handicapping conditions, so that it is clear we are talking about the pool of children that we have always served under these 13 categories and that we're not including new categories.


SENATOR STUHR:  Okay.  Also, a question relating again to block grants, that superintendents have been contacting me about, particularly those from small schools and wondering again how the rates will be assigned to schools through the block grants.


SENATOR McKENZIE:  Senator Stuhr, that is outlined as a responsibility of the Special Education Accountability .Commission as they review the numbers and the costs based on different sizes of schools across the state in making that recommendation.


SENATOR STUHR:  I think that many of the superintendents are concerned about the mobile society that we live in, that over the summer months they may have a family with three children that have special needs that move into the district, that, you know, there may not be funds to accommodate those needs, and how are we, you know, going to address that?


SENATOR McKENZIE:  Senator Stuhr, currently if a school has three high needs students move in, in the summer, they are not




going to see that money for another year and a half.  And they have to deal with that now.




SENATOR McKENZIE:  We would hope that in the block grant approach, with some allowance for meeting those extreme needs, that we could actually provide that additional cost to the district that year instead of having to wait another year, Actually it would be better for them than the current system.


SENATOR STUHR:  Okay.  I know when the bill was introduced there were only two proponents at that time for the bill, and at least ten opponents.  And I'm wondering, Senator McKenzie, have you had a chance to work with those groups, the Nebraska Association of School.  Boards, the Nebraska Rural Consolidation of Schools,...


SENATOR CROSBY:  One minute.


SENATOR STUHR:  ...  the Nebraska Council of School Administrators, because I think that we will need support from these groups.


SENATOR McKENZIE:  Senator Stuhr, I'm looking for my list of groups that I've had individual meetings with.  And let me remind you, those people were testifying in opposition to the original bill,...




SENATOR McKENZIE:  ...  the Governor's bill.




SENATOR McKENZIE:  This amendment now that has been adopted as Senator Bohlke's amendment and this reform measure is not that bill.  I've met with the representatives of advocacy ...  parent advocacy groups, including ARC and autism, multiply handicapped, deaf, blind.  I've met with representatives from multiple school districts, special education directors, superintendents, principals, many, many groups who have come in and said we want a chance to talk about our concerns.






SENATOR McKENZIE:  SO I had a list prepared in order to answer that question, but...




SENATOR McKENZIE:  ...  it's buried.


SENATOR STUHR:  Okay, thank you.


SENATOR CROSBY:  Thank you, Senator Stuhr.  Senator Chambers.


SENATOR CHAMBERS:  Madam President, members of the Legislature, I'd like to ask Senator McKenzie a question, if I may.


SENATOR CROSBY:  Senator McKenzie.




SENATOR CHAMBERS:  Senator McKenzie, on page 1393 of the Journal if you'll look in line 17, down toward the bottom of the page, that second line 17, it ...  this is what we read starting in that line, "It is the intent of the Legislature that these issues", and they're listed out above that, "shall be addressed jointly by these" outfits.  What does "addressed" mean?  That they'll just talk about them and maybe make a recommendation or something?


SENATOR McKENZIE:  Senator Chambers, my intent in this language is to say that we will be working collaboratively in conjunction with the Education Committee, in their interim study, to bring forth those recommendations that we have charged each individual, commission or committee with, along with members of the advocacy groups that I have met with...


SENATOR CHAMBERS:  Okay, now if we go up to the first line 20 on that same page, 1393, we have these words, "The Legislature recognizes that the shift from an excess cost reimbursement funding formula to a block grant formula for special education raises several issues which demand further examination and public discussion prior to implementation".  These things don't have to occur though in order for implementation to take place, isn't that correct?  There's nothing in the bill which says if these things don't happen there will be no implementation?




SENATOR MCKENZIE:  I believe that's correct.


SENATOR CHAMBERS:  Thank you.  That's all I wanted to ask you to be sure I understood it.  Members of the Legislature, I'm still smarting in the sense of feeling irritation and aggravation because of the welfare bill, LB 455.  We were tricked into passing some things last session by being assured that work was going to be done on employment programs, the kind of jobs available, work incentives.  We come back this year and LB 455 not only is a bill where that work has not been done, that language is to be stricken from the statute by LB 455.  That is some of this preliminary work that was to be done before we implemented so called reform.  That work was not done and the language calling for it is going to be stricken from the statute.  A similar tactic is being used here saying that there are' problems that are clear, they ought to be addressed.  But the fact is they don't have to be addressed.  These are the kind of things that are said to take the sting out of some of these provisions that maybe ought not be put into law.  But by saying there are certain provisions of the law which are going to take effect and be law, those are not to be touched.  But we put a lot of fluff in it which says, well, yeah, we ought to discuss these things in advance, but if they're not discussed that failure to discuss does not prevent these other provisions from taking effect.  Senator Maurstad had raised a question about increases in the amount spent for special education, and I think his discussion was significant, and it-probably is an area 'that requires and justifies additional discussion because we have to look at the point from which these children start.  If we're talking about traditional or regular or general education for those students who don't have handicaps, physical or mental, it may take a lesser amount of money...


SENATOR CROSBY:  One minute.


SENATOR, CHAMBERS:  ...  to raise them to another level or to just hold them even with where they are if that becomes the policy of the state.  Somebody who starts with a handicap may require a greater expenditure to just hold them harmless or even with where they are, or to move them a comparable level with these other general education students.  So I'm opposed to a formula that says we're going to reach a point where special education expenditures cannot increase at a faster aster or greater rate than expenditures for general education.  The two are not the same.  The two are never going to achieve the same results, and it is




always going to cost more to minister to the needs of one group than to the needs of the other.  And as long as those distinctions are there I'm opposed to saying that we're going to treat them exactly the same as far as the funding.  I have my light on again because although I said this morning I was going to try not to say too much, I still don't think I've said too much because this is only my second...






SENATOR CROSBY:  Thank you, Senator Chambers.  Senator Robinson, followed by Senators McKenzie, Vrtiska, Lynch and Chambers.


SENATOR ROBINSON:  Madam President, members of the body, Senator McKenzie, probably my last question.


SENATOR CROSBY:  Senator McKenzie.


SENATOR ROBINSON:  In a couple of minutes tell me what this bill will do.


SENATOR McKENZIE:  Well, Senator Robinson, the bill, first of all, and the amendment that we adopted this morning limits the amount of money that the state will contribute in their share for special education funding to the same amount that we allow general,.  education to increase.  The intent language that we're discussing in this amendment is about how we re-examine what we currently have required school districts, ESUs, cooperatives, special education personnel to do, through our rules and regulations and state statutes, to find a different system to deliver services to students, one that does not necessarily require that you have to verify in order to provide a service to some children.


SENATOR ROBINSON:  So you're saying this group will bring you ...  who will they take their recommendations to?  Will they bring them back to the Legislature then...




SENATOR ROBINSON:  ...  and if there are any changes that have to be made, we will ...  we, as a body, would determine whether they are to be made or not?  Is that correct?




SENATOR McKENZIE:  That is correct, they will bring recommendations back by November of this year and legislation then would be drafted for introduction next session, and that will include all the specifics dealing with those various issues that people have presented in arguments this afternoon and this morning, those concerns.


SENATOR ROBINSON:  I have one remaining question.  Has the area of legal fees been discussed at all?


SENATOR McKENZIE:  Senator Robinson, that has been brought to our attention.  It has been introduced as a bill before the Education Committee in the past in terms of the state's possible share in some of those court costs where there are challenges presented by parents on behalf of their children.


SENATOR ROBINSON:  Okay, thank you.


SENATOR CROSBY:  Thank you, Senator Robinson.  Senator McKenzie, your light is next.


SENATOR McKENZIE:  Thank you, Madam President and members of the body,.  I just wanted to address a couple other concerns that had been brought to my attention that.  you may be interested in having clarified.  On the top ...  or excuse me, on line 20 or line 1 on page 1392 it says, "The Legislature finds that the funding system for special education programs shall be neutral as to identification and programming of services." Now, people have asked what does that mean, neutral as to identification and programming.  Let me remind you that in our current system we are required to identify and verify before you can begin the delivery of services, before you talk about the program, before you do anything else.  And what we hope we can do in loosening up all of these very strict rules and regulations is to say that we are providing special education because we know we have children who need it, that the program will be neutral in terms of what we can do and not strictly based on the fact that we .have a child here with money to follow.  We know we will have the money, we know we have the children, we know we need to verify but we don't have to decide what we do in our program based on the number of children we have and the amount of money we know we're going to have this year based on last year's kids, which is currently what happens.  That's also what the following line refers to, "services for students with unique needs shall




be driven by student and family needs rather than by state funding formulas Currently, one of most inequitable situations that happens is that we have school districts who have to pay for the identification and pay for the verification process or pay for services for a multiply handicapped child who comes into the system, and then wait a year to get that money.  Now what we provide to the children, all children in special education that year is somewhat driven by our funding formula, not by what our students and families need but by what we happen to have as available money based on last years' numbers, not this year's numbers, last years' numbers and costs.  So that language is in there basically to say we're going to move away from the idea of letting the money dictate what we do and looking at what needs to be there for students and families.  The other area that I'd like to draw your attention to is on the...  the first line on the top of page 1393, it says, "to the extent possible".  I apologize for that language being there, it was in the original proposed amendment and was supposed to be stricken.  It will be removed in Select File amendments, as will the language about unique needs of students.  So I wanted to bring those two areas back to you for your consideration.  And, Senator Chambers, if I could respond to one other...  one other addition to your previous question, there is a repealer section on the final part of the amendment that does repeal ...  it's Section 7, does repeal those sections of statute that deal with the funding mechanism the state currently has for special education.  So there is a repealer for the funding system, but not necessarily for the intent language in the process for reform.  Just so you knew that that is there.  Thank you.


SENATOR CROSBY:  Thank you, Senator McKenzie.  Senator Vrtiska.


SENATOR VRTISKA:  Thank you, Senator Crosby, members of the body.  I guess, first of all, I'd like to say probably there are people who have been brought in for questioning that have taken less grilling than Senator McKenzie has taken this afternoon.  But given that statement, I want to ask her another question when she gets back to her station.


SENATOR CROSBY:  Senator McKenzie.


SENATOR VRTISKA:  Senator McKenzie, I said when you weren't listening I think you've probably taken more grilling than probably somebody who's been picked up by the police and tried




April 191 1995 LB 742


to be put in jail.  I hope you don't feel -that that's where you're going to end up as a result of this.  But at any rate, the question that I have to ask you pretty much has been asked by Senator what's his face back here, Senator Robinson, (laughter), and I think you gave a pretty good explanation.  But I just wanted to add one more part to that, that I'm not quite sure and maybe you can answer.  You got down to the parts about the recommendations and the legislation necessary and those things.  But then you didn't finish up the issue that has to do with block grant funding begins.  And that's the issue I'd like to talk to you just a little bit about and how you developed the block grant, where do those funds come from initially?  Are those state funds?


SENATOR McKENZIE:  Senator Vrtiska, those would be the same funds that we are currently distributing to school districts.


SENATOR VRTISKA:  Well, the reason I brought ...  the only reason I brought the question up, because we're talking ...  we're listening or hearing more about block grants from the federal government and I was curious if some of these funds would be block grants that would be (inaudible) from the federal government and through the state and then down to this system, or do you have any idea?


SENATOR McKENZIE:  Well, we do receive some federal money that is included in the special education...




SENATOR McKENZIE:  ...  dollars, so, you know, and whatever ...  and then whatever dollars are there currently being distributed in the reimbursement formula, they will be distributed through the block grant formula...


SENATOR VRTISKA:  Well then that really brings up my question, is there some assurance, and it's probably unfair, but is there any assurance that any of those funds will be passed down that you're now getting so that you can continue at that level with those same dollars?  And I suppose that's an unfair question, ,but it's one that's kind of important.  And when you talk about the, you know, the attempt to reduce the cost, if in fact those funds dry up then's a whole new ball game, the way I view it.




SENATOR McKENZIE:  Senator, that is a whole new ball game if, in fact, we lose a significant amount of our funding from the federal level for Medicaid, for example, because...




SENATOR McKENZIE:  ...  we use that to help fund zero to three.




SENATOR McKENZIE:  Most of the money, however, that is paid, of this 122 million is state money, that is state money.


SENATOR VRTISKA:  Yeah, I understood it was, but I thought there was some federal dollars that were...that we were using at this time, and I was just curious, looking at the federal budget and attempts to reduce grants, if that...  if any discussion had been held regarding that and how it would affect.  If you have any idea who it would affect the total dollars that would need to be, you know, available if in fact that happened.  I don't know that it's that important, but it can be important if it's a significant amount.


SENATOR McKENZIE:  As it will be if they cut our highway funds or (inaudible).


SENATOR VRTISKA:  Well, I understand that, we're not talking about the highway right now....


SENATOR McKENZIE:  Yeah, right.


SENATOR VRTISKA:  ...  we're talking about education of our kids and I'm really concerned about...  obviously you know what my whole thesis here is and I can't deny it, and that is my fear of...


SENATOR CROSBY:  One minute.


SENATOR VRTISKA:  ...  local dollars being generated in order to pick up any other costs that we incur...that we lose through any attempts by the federal government to reduce their expenditures.  And, you know, that continues to be a concern, and I'm sure it is of everybody's and I'm not sure we can 'do anything about it.  But I just thought that the issue is important enough to at least have it brought to our attention




that we may have to in fact work through that system some way.  So, with that, I appreciate your time and I reward you for your endeavors to continue with this dialogue.  Thank you.


SENATOR CROSBY:  Thank you, Senator Vrtiska.  Senator Chambers, on the McKenzie amendment.


SENATOR CHAMBERS:  Madam President, members of the Legislature, I know that this amendment is going to be adopted, I know this bill is probably going to be moved, but I'm not comfortable with it at all.  And I'm speaking in general terms because I know there's not enough time left to go into specifics on this amendment, so I'm not going to do it.  You all will have to read it and draw your own conclusions as I've drawn mine.  But the key phrase in all of this to me is block grants.  As I was discussing this with Senator Schimek, and I've talked about it to some of the others of you, even Senator Bernard-Stevens, and he's in favor of this bill, it seems to me that whatever happens at the federal level is to be replicated at the state level, even using the same terminology.  On all these so called welfare reform measures they started with crack-brained notions in Washington, and right now in New Jersey, which was one of the first states to implement all of that they're backing away from it and saying that the bill has not achieved the results that they were boastfully saying had been achieved.  Now here's Clinton saying that the bill passed by the House on so called welfare reform has done nothing as far as providing work assistance to these women, but it's very punitive toward children and he'll veto it.  We don't have anybody at the state level who will veto the bad bill that we're facing.  This is political activity.  I'm not saying those supporting this bill are politically motivated.  But we are at a political moment in time where whatever happens at Washington and seems to have momentum filters down to the states and an attempt is made to derive momentum from that.  And I see this still as what the Governor would like to do.  And the key phrase, as I was going to say, is block grant.  That is federal terminology.  And when you're going to completely or radically alter a program such as this dealing with children who are the most vulnerable it takes a lot to persuade me that they are not going to be harmed.  This list of findings that I had discussed very briefly with Senator McKenzie, on page 1393 of the Journal, are things which should have been done.  If you're going to expend money even on a pilot .program then some determination should have been made of what an appropriate amount is.  This is a very extensive amendment, not




only in terms of the amount of paper that is used to carry the amendment but the things which are to be done.  If a program in to be totally revamped there requires, in my opinion, more discussion than has occurred.  I had stayed out of it hoping that some of the issues that are important from my position would be adequately discussed.  There seems to be this session bills that are brought which require a lot of discussion, and in some cases a lot of work because the issues ...  well, in some of the bills that are throwaway bills, they're nonsensical.  But there are other bills that genuinely require a lot of time to get at what it is we say we're interested in or to determine even if that's the direction we should go.  But the attention level seems to diminish and some of the senators begin to feel that because we've been discussing a bill for a period of time there should be no interest taken in that bill or what it is doing.  When the clock says a certain number of hours or minutes have elapsed we should get off this bill and move it.


SENATOR CROSBY:  One minute.


SENATOR CHAMBERS:  This is one of those bills where it should not happen.  If there was some way to guarantee in this bill that the children being served by this program will be held harmless in every respect, I'd feel differently.  If there were something in this bill that says, until these things mentioned on page 1393 are completed, no part of this bill will take effect, then I'd feel differently because that would be the incentive to make sure these things are done.  But if parts of the bill are going to take effect and then you do the study or you don't do the study, you address it or you don't address it and it makes no difference, it's more than likely that if there is an addressing of these issues it will be done in a very perfunctory, superficial manner.  I'm trying to avoid just saying I'm opposed in every respect to everything being done, but right now I'm not...




SENATOR CHAMBERS:  ...  in a position even reluctantly to support the bill.


SENATOR CROSBY:  Thank you, Senator Chambers.  Senator Bromm, followed by Senator Lynch, Elmer, Janssen and Beutler.


SENATOR BROMM:  Thank you, Madam President and colleagues.  I




want to respond to a couple of things that have been said perhaps this morning or just a short while ago by Senator Chambers.  One of the things that Senator Chambers alluded to in his first speech on the bill was his opposition to the proportion that we should limit special ed increases to the increases in general education funding, indicating that it costs more to take care of kids with special needs than it does with kids who are mainstreamed, normal in learning abilities.  The thing that I'd like you to consider, Senator Chambers, is that we are already starting out with costs in the special ed area per student at a much higher level, which is understandable, which is what you were saying.  Let's say we have a 10,000 per year cost for special education student, which isn't out of...  out of reason, and we have a 5,000 per year cost for a regular educated student, and if we keep them at the same rate of growth or increase, 5 percent on the $10,000 per year student would be $500, 5 percent on the $5,000 per year student would be $250, and using that rationale, what I'm trying to say is even with that language you're going to have more of an increase per year in absolute dollars for special ed help than you will for regular educated students.  And bear in mind that the bill is a starting point.  We ...  we....  I don't know how anyone could argue in here that we should do nothing.  I think if you argue we should do nothing then you are the ones that are hurting kids because we're going to get to the point in five years, six years, seven years when we will have no money to fund some of the programs that you want to support.  We won't have it because most of it will be going for things that are out of control in cost in areas like this.  We won't be able to educate the students you want to educate in the way you want to educate them because you won't have the money.  We are on an absolute collision course, and if you say a vote for this bill is a vote against kids, you're wrong.  A vote for this bill is a vote to start a process in motion, the bill doesn't provide the solutions, the bill sets out the problem and says this is the process we're going to take to approach solving the problem.  We're asking those who are experts in the area, providers, people who are parents of special ed kids, the teachers, the administrators to help us find the solutions.  The solutions are going to be built from the bottom up instead of dictated from the Legislature down.  And I think if we had more legislation built.  that way we'd have better laws that we enacted.  This law is just the beginning.  We won't know what we're going to do in terms of the specifics until next year, perhaps the year after even, and that to me is the way we're going to help kids.  We




don't want to find ourselves here in the year 2000 or 2002 saying, my Lord, over half of our educational money is going to this area, we've got to cut the area, we've got to do away with services, you know.  We don't want to get to that point.


SENATOR CROSBY:  One minute.


SENATOR BROMM:  We're on the cliff of getting to that point, we're on the verge of it, and so it's time to do something..  And this bill takes the approach, as I want to emphasize, of building the solution from the ground up or from the bottom up rather than from the Legislature down.  And I think with a difficult problem that's a good way to approach it.  Thank you.


SENATOR CROSBY:  Thank you, Senator Bromm.  Before we go on to the next speaker, I'd like to call the Legislature's attention to the north balcony where Senator Robinson has 50 seventh graders as his guests today, from West Point Guardian Angel School in West Point, Nebraska.  And with them is their sponsor.  Would you all please stand and be welcomed by your Legislature.  Thank you.  Senator Lynch.




SENATOR CROSBY:  The question has been called.  Do I see five hands?  I do.  The question is, shall debate cease?  All those in favor vote aye, opposed no.  We're voting on whether to cease debate.  Have you all voted?  Senator Lynch.  There's been a request for call of the house.  All those in favor vote aye, opposed no.  Record, Mr. Clerk.


CLERK:  19 ayes, 0 nays to go under call.


SENATOR CROSBY:  The house is under call.  Would all senators please return to the Chamber and record your presence.  Would all senators....  Would all unauthorized personnel please leave the floor.  We are voting on whether to call the question.  I mean whether debate should cease, excuse me, and Senator Lynch has indicated he will accept call-in votes.  We're looking for Senator Lindsay, Senator Matzke, Senator Brashear, would you like to check in.  Senator Cudaback Senator Schellpeper, Senator Warner, Senator Schmitt, Senator Schrock, Senator Wesely, Senator Hall ...  oh, Senator Hall just came....  We're voting on whether to cease debate.  Senator Lynch has indicated that he will accept call-in votes.




CLERK:  Senator Warner voting yes.  Senator Coordsen voting yes.  Senator Hartnett voting yes.  Senator Schmitt voting yes.  Senator Wesely voting yes.


SENATOR CROSBY:  Record, please.


CLERK:  25 ayes, 1 nay to cease debate.


SENATOR CROSBY:  Debate does cease.  Senator McKenzie, would you like to close.  I'm going to leave the house under call because we will come to a vote after she closes.


SENATOR McKENZIE:  Thank you, Madam President.  I'd like to yield the beginning of the close to Senator Bernard-Stevens.


SENATOR CROSBY:  Senator Bernard-Stevens.


SENATOR BERNARD-STEVENS:  Thank you, Senator McKenzie.  Madam President, members of the body, Senator Chambers is right on a couple of things but I want to correct him.  And I assume he did this because he goes to war against some of the policies in Washington, which is why he called it "Warshington".  But I know Senator Chambers, who like to enunciate words in their proper form, would never make the mistake of saying "Warshington" when in fact it's actually Washington.  But I assume it's because you go to war so often with some of the policies that it just kind of slipped out.  So I wanted to clarify that.  It is a !jig ...  this is a big policy, it is a big bill.  And that's why I think there should be extended debate and make sure the questions are answered that can be answered.  But there are a lot of questions that simply can't be answered until we take the next step.  We are going to be.  working with senators between General File and Select File on a lot of issues.  The high growth rate trigger that Senator Maurstad and Senator Avery and others have been talking about.  I Different mix on the commission, whether we need to take one of the four that are voluntary and make one more of them a board member, or one more finance officer, or even include the parochial schools.  There's ...  one of the things we also are considering is in the 1995-96 portion of the Bohlke bill, which puts the cap only in place, that actually we would put the growth rate in that year as well, so there would not be...  it would not be simply the cap without growth that first year.  We're also going to be meeting, within the next week, with each of the groups that are going to




be dealing with this issue, that being -the state board, the special ed commission, the commission of school finance that Senator Withem is a member of, and certainly Education Committee to all get together and simply saying how do we coordinate this to make sure we do what we say we're going to do.  And also I want to mention to all senators that we are not closed to any idea, we are willing to sit down with all and any...  and certainly Senator Chambers, or Senator Maurstad, or anyone that has questions, we will sit down and talk to the best of our ability and find ways that we can accommodate those and still accomplish the goals that we're trying to do.  I appreciate debate taking place, it is a major step.  I would urge advancement of this particular amendment and would assume that even on Select File there would he a tremendous amount of discussion and debate because I'm not kidding when I say this is a very, very bold step for the Legislature to take, I think it's necessary.  And I appreciate the work that Senator Bohlke and Senator McKenzie have done.  And, Senator McKenzie, thank you for that time on your closing.


SENATOR CROSBY:  You have about...  a little over two minutes.


SENATOR McKENZIE:  Thank you, Madam President and members of the body.  I want to I guess reiterate and use the same closing I did in committee when we introduced the bill.  You know this is certainly kind of a great old 1973 Chevy that we put together a long time ago.  Nebraska was one of the leaders nationally in the beginning and the programming for special education.  And it's a long, proud history we should have.  But we have not changed, modified or adapted this 1973 Chevy and it's 1995, and it is time to unfortunately look for something that is not requiring as much fuel for a fewer number of children than we did in 1973 or in '77 or in '85.  And I would draw your attention briefly to the last chart in one of the handouts that shows the rate of growth of special education as a percentage of total state aid.  It's remarkable to look at the years where 1059 funds became available to the school districts, where we gave money and...


SENATOR CROSBY:  One minute.


SENATOR McKENZIE:  ...  equalized the way in which we provided money to those districts.  And you will notice that there is a .drop for a year and then special education costs begin to skyrocket.  It's a good argument to say whenever we do things to




provide additional funds where we need to that, in fact, we end up encouraging higher costs in the long run.  There are a lot of reasons it's costing more, we have more high needs kids, we have crack babies, we have babies born at a pound and a half that are now in our schools and we are educating them and we should educate them.  But if we want to turn away from this problem and say we don't have it in Nebraska, we'll be in the same situation Minnesota is, where they are now spending 602 million a year, where they're cutting science, art, music, band, sports and every other program in general education because they have allowed special education to eat up all the other money for general education.




SENATOR McKENZIE:  I'd ask for your support on the amendment.


SENATOR CROSBY:  Thank you, Senator McKenzie.  You've heard the closing.  The question is the adoption of the McKenzie amendment to the committee amendments.  All those in favor vote aye, opposed no.  Record, please.


CLERK:  33 ayes, 2 nays on the adoption of the amendment to the committee amendments.


SENATOR CROSBY:  The amendment is adopted.  I'll raise the call.  Anything further?


CLERK:  Senator Chambers would move to amend.  (Chambers amendment, FA156, appears on page 1731 of the Legislative Journal.)


SENATOR CROSBY:  Senator Chambers, to open on your amendment.


SENATOR CHAMBERS:  Madam President, members of the Legislature, if you'll turn to page 1392 of the Journal, if you're interested, I will tell you what this amendment does.  Beginning with the word "all" in line 5, we would strike the language through the word "regulation" in line 10.  I'm going to read the language that would be stricken.  "All rules or regulations, or portions thereof, not required by state law, federal law, or federal regulation shall be repealed or modified, so that the rules and regulations do not require any action by school districts, educational service units, or approved cooperatives that is not required by state law, federal law, or federal




regulation." the re...before I go on, let me ask Senator McKenzie a question.


SENATOR CROSBY:  Senator McKenzie.




SENATOR CHAMBERS:  Senator McKenzie, in line 7 would be page I of the amendment as written and which was adopted, are the words "shall be repealed or modified".  Those words constitute a mandate and that mandate, as I understand it, is laid out in the rest of this language which talks about rules or regulations or portions of them not required by federal or state law or regulation, and the mandate is that they shall be repealed or modified.  Is that correct?


SENATOR McKENZIE:  That's correct, Senator Chambers.


SENATOR CHAMBERS:  Now when it says the State Board of Education with the assistance of the State Department of Education shall review these rules, who exactly is going to undertake that review and what expertise will they have?


SENATOR McKENZIE:  Senator Chambers, my understanding is that it will in fact be the State Board of Education and Don Anderson, who is the head of special education, along with an advisory committee that the state board has appointed, the Special Education Advisory Committee, which is a broad-based group of constituents and citizens that make suggestions to them about special education.


SENATOR CHAMBERS:  When must this repeal or modification take place?


SENATOR McKENZIE:  The board and the department would report with preliminary recommendations November 1st of this year.


SENATOR CHAMBERS:  I don't think so.  I think what you're looking at is where they'd make recommendations about state laws that should be repealed as opposed to their rules, unless ...  and I'm feeling my way on this.  But I think what you're referring to is state laws.


SENATOR McKENZIE:  Senator Chambers, if I can take a minute of your time,...




SENATOR CHAMBERS:  Yes, if you will.


SENATOR McKENZIE:  This section in Section 1 is a section I have highlighted in yellow on my copy, and it's one that we have discussed several time and modified several times trying to get language correct...




SENATOR McKENZIE:  ...  with good intent to say we're looking for areas where we have gone beyond what we need to do in terms of the nit-picky, who should be there, what should be done outside of federal regulation and state law.




SENATOR McKENZIE:  Yes, this is strong language.  And I would assume based on your question that unless we add some date in this section that it would imply that it becomes law upon passage of the bill.


SENATOR CHAMBERS:  I'm not sure what it does, that's why I'm asking.  If ...  they don't have to really ...  well, first of all, if they're ordered to repeal it they've got to do it or they're not discharging their duty under the statutes.  And if failure to discharge a duty could be a basis for removal from office or whatever might flow from it, this could be potent language.  So what I'm asking, when must the repeal take place?  Oh, I'll discuss it because Senator McKenzie and Senator Bernard-Stevens are looking at it.  Maybe they will together arrive at an answer, because these questions that I'm asking are not designed to be trick questions but to get at what it is that we have in the law before us.  And right now what I'm talking about has been added to the committee amendments, the committee amendments are going to be adopted and this will be the law.  When you lay out a responsibility such as this there can be disagreements in terms of what actually is required by a state law or a federal, law, and especially what may be required by federal regulation.  Right now the Attorney General and the Governor are saying that a federal agency has misconstrued a regulation with reference to the payment of abortions ...  payment for abortions for poor women.  So there are federal people arguing between and among themselves as to what a federal regulation means.  So if I look at a regulation and I construe that regulation to in fact embody a




program promise or duty and the one making this review doesn't want to keep that part of the program says, well I :lee this as just a regulation, I don't think it's required by the federal law or the state law, so this is not repealed.  And we've lopped off a part of a program because some individual over there said this is just a rule or regulation we're not required to comply with.  Senator Bernard-Stevens is going to give me some information, I think.  So if he'd like to say it....


SENATOR BERNARD-STEVENS:  Senator Chambers, I appreciate the moment.  I think we can probably agree with the amendment.  And I don't think either Senator McKenzie or I have any problem with it.  We would like to add at the later part of line 13, that says, when they come back with their preliminary recommendation for state laws and rules and regulations that could be repealed or modified, that would cover all of our concerns.  And so we would like to draft that amendment that would simply add this portion.  And if we could re...  substitute that in, then we'll take care of the deletion and adding that part, and I think we'll all be in agreement.


SENATOR CHAMBERS:  Madam President, while that is being drafted I'm going to try to explain what Senator Bernard-Stevens said, and they can be making the draft.  We would adopt the portion that I'm offering where you do away with the requirement that these rules and regulations be repealed.  That language would be taken out.  Then in this language that appears later in this amendment, if anybody is really interested in it, that requires the board, starting in line 16, if I'm at the right spot, the board shall complete its duties under this section and report to the Committee on Education of the Legislature with the final recommendations, or maybe you go a line above.  Where they talk about any state laws that need to be repealed or modified they would also include rules or regulations.  Then we're at a set of circumstances where the board and the department are not repealing rules and regulations because they, or whoever their staff members are, have reached a certain conclusion and made the repeal.  All they would do is undertake their study, then they would come back with recommendations with reference to laws and also the rules and regulations that may need to be repealed or should be repealed and modified.  As it is, Senator Janssen, because I see you looking puzzled, the board or the Department of Education would actually begin repealing rules and regulations.  With that language stricken, which Senator Bernard-Stevens and Senator McKenzie have agreed to do, we would




then insert language at another place in this bill and that place talks about the board and the department undertaking these studies then coming back with recommendations as to what ought to be done.  So instead of the department and the board doing these things in the way of repeal and modification, they will undertake their study, they'll come back and make recommendations.  And if their...they might, in addition to recommendations, give information justifying that recommendation.  Then the Legislature would have another crack at whether or not we think that what they're suggesting is what ought to be.


SENATOR CROSBY:  One minute.


SENATOR CHAMBERS:  And I will say again what I'm still concerned about.  Sometimes a significant part of a delivery of services can be embodied in a rule or a regulation.  So you can either look at that as part of a program or you can look at it as a rule or regulation.  If somebody's authorized to lop off rules and regulations, which go beyond what the federal government requires, then that part of a program could be lopped off.  And I don't want to see that done unless there is some oversight by the Legislature, I probably still would disagree.  But if it's to be done I think it should be done through the Legislature and not just a board or a department.  Senator McKenzie, do you all have you all's amendment?  So, are you going to substitute it or are you going to add that...amend mine?


SENATOR McKENZIE:  Senator Chambers, we wrote it so it could substitute for yours.


SENATOR CHAMBERS:  That's all right with me.


SENATOR CROSBY:  Time.  Senator McKenzie, your light is next.  Mr. Clerk.  Senator Chambers.


SENATOR CHAMBERS:  I would like to withdraw that amendment that I had up there.


SENATOR CROSBY:  It is withdrawn.


CLERK:  Senator McKenzie would move to amend.  (McKenzie amendment, FA157, appears on page 1731 of the Legislative Journal.)




SENATOR CROSBY:  Senator McKenzie, to open on your amendment.


SENATOR McKENZIE:  Thank you, Madam President.  We have essentially taken the very same language that Senator Chambers had in his amendment, striking, beginning on line 5 with the word "all" through line 33, through "regulation", that section of statute, but then added, on line 13, following the words "state laws" we've added, "rules and regulations that could be repealed, modified, or retained to reduce restrictions on school districts".  So we've, eliminated lines 5 through 10 and then inserted, in line 13, "rules or regulations that could" instead of "should", "be repealed".  Now we may need to clarify and make sure this language is going to work in terms of all the legalities between now and Select File.  But 1 stand in support of the change and would yield the rest of my time to Senator Bernard-Stevens.


SENATOR CROSBY:  Senator Bernard-Stevens.


SENATOR BERNARD-STEVENS:  Thank you, Senator McKenzie.  And, Senator Chambers, I do want to talk about a couple of things.  Number one, I concur with you that only the department can do rules and regs, that's why we also have that they need to come back with what they could do.  And obviously if they want to do something on a rule and reg they have the power to do that.  And I appreciate you working with us on that portion of the amendment.  I do want to make it very clear what this amendment does.  And I'm willing to do this.  I have no difficulty doing it.  Some of my compatriots around and behind me are getting awfully nervous now because the attitude is that if you waive all of the rules and regs now, they're just waived, then it forces people to come to the table and say, gee, we know everything is waived, we don't know if this program or that program is going to be there anymore, let's really get serious and talk about it.  I believe this is a bold enough step that we're taking and it is reasonable to say that we're willing to say, look, we're going to have everything that's there now and we are going to look at what we may modify and/or take away, and the people know that this is coming or it may be coming, and I think they'll be serious because we've talked with all the department people, we've talked to all the people on the commissions, they are very serious about it and I do believe that this is ...  in normal cases I always like to have the hammer to make things happen.  I do not believe the hammer is necessary in this ...  at this time so I concur with the amendment, and I




don't think it takes away, nor kills the bill or takes away from the bill, in fact it adds a level of compassion that probably should be there.


SENATOR CROSBY:  Thank you, Senator Bernard-Stevens.  Before we continue on the amendment, I'd like to call the senators' attention to ...  we have a guest under the south balcony, Bruno Chiaverini, who is the Director of International Relations from Lyon, France, and we'd like to welcome you.  If you'd stand the Legislature will welcome you.  Thank you for being here.  Senator McKenzie, your light is next.  Senator Beutler, on the McKenzie amendment.


SENATOR BEUTLER:  Senator Crosby, members of the Legislature, the suggestions ...  the combined suggestions of Senator Chambers and the introducers of the amendment all make sense to me.  And I wanted to clarify with Senator McKenzie that the changing of the word "should" to "could" applies both to state rules and regulations and to state laws.  It modifies both, does it not?  Yes, okay.  That was important to me because again I wanted to reemphasize what I understand your respective intents to be, which is that the Department of Education doesn't make a judgment about which things should or should not be repealed or modified, but rather they relate to the Legislature those things that could be done and let us select what should be done, is that correct?


SENATOR McKENZIE:  Senator Beutler, that's correct in terms of state law.  However, rules and regulations are there under their authority.


SENATOR BEUTLER:  Well rules and regulations are under their authority, but the intent of this language is for them to identify for us the rules and regulations that could be modified to further the purpose described in the section, is that right?


SENATOR McKENZIE:  That's correct.


SENATOR BEUTLER:  Okay, thank you.


SENATOR CROSBY:  Thank you, Senator Beutler.  Senator Chambers, on the McKenzie amendment.


SENATOR CHAMBERS:  Madam President, members of the Legislature, I was just going to express agreement with Senator McKenzie's




amendment, but in view of what has been" said I' want to just elaborate a bit more.  It should be kept in mind that we are making a radical departure from the way things have been done.  That is not always bad, sometimes essential in the same way that ...  pardon me, Senator Maurstad, but I have to do it again, in the same way that sometimes radical surgery is necessary for a human being.  When something radical is to be undertaken the word "radical" in itself should not be viewed as being positive or negative.  It should be a word to let us know that we're undertaking something that very substantially modifies, alters or changes something from what it is into something else.  It almost is a transmogrification, I got that from little Calvin in the newspaper.  He had this cardboard box that transmogrified, although I knew what the word was before that.  But I like the fact that this little fellow, who can't even figure that 2 plus 2 are 4, he was ...  he's transmogrifying things.  So I thought I'd throw that in at this stage of our discussion, since we're talking about education.  But because of the changes that we're undertaking I don't want the board ...  the State Board of Education, nor the State Department of Education, two entities, each of which is subject to political and other types of pressure, to get the idea from what we're doing here today that they should begin to do away with rules and regulations, because what they do with reference to rules and regulations can undermine, to a great extent, what the Legislature is attempting to do through statutory enactments.  We know that rules and regulations can grow and thicken around one basic idea, in the same way that barnacles might collect on the bottom of a ship.  But not every ...  excuse me, Senator Maurstad.  Not every rule and regulation is necessarily bad simply because there has been a proliferation.  When we are radically changing a program in this manner, and I'm not sure that I agree with it, there still should be a careful evaluation of those rules and those regulations to see which ones actually facilitate the achievement of the legislative goal contained in the legislation that we enact into law.  So with the amendment that was adopted and with the things that we have discussed it should be clear to the State Board of Education and the State Department of Education that there is to be an integrated, coordinated effort, a cooperative changing of this program, if this bill in fact is enacted into law.  There is so much here that I have not even thoroughly digested, let alone being able to say that I've digested it to the point where I can undertake an analysis and say how it is going to change and affect things that I don't want to see affected in a certain way, because that is the fact




in my situation I can't say that I support this bill.  This amendment I will support because it takes away part of the concern that I had.  The next amendment that I have is of much greater substance...


SENATOR CROSBY:  One minute.


SENATOR CHAMBERS:  ...and I think it probably will he opposed and probably will be defeated, but it's touching a subject that I think has got to be discussed specifically by the body at this point.


SENATOR CROSBY:  Thank you, Senator Chambers.  Senator Maurstad.


SENATOR MAURSTAD:  Thank you, Senator Crosby.  If, Senator McKenzie, if you could respond to a quick question here.


SENATOR CROSBY:  Senator McKenzie.




SENATOR MAURSTAD:  If I'm interpreting the amendment correctly and if I'm not missing something else in the bill, what we're doing also by this amendment is taking out any reference to rules and regulations not required by federal law or federal regulation.  Is that correct?




SENATOR MAURSTAD:  And is that your intent that you would want to remove that from the bill at this juncture?


SENATOR McKENZIE:  Senator Maurstad, I would say at this point that if we give direction to the Department of Education and the board to review their existing rules and regulations with preliminary recommendations for any of our own state laws and rules and regulations that should be repealed, while we are not specifically saying outside the federal regulation, I believe it is implied.


SENATOR MAURSTAD:  And, okay, I'll accept that explanation.  I think that we need to be clear what our intent is and from discussions that have taken place I think some of our concerns., some of my concerns, I'll speak for...  some of my concerns also deal with that aspect of what we're doing that is outside of




federal law or federal regulation and would just want to make certain that we also or that the department and the other groups that are involved here also take that and keep that in mind when these recommendations come back before us, that we don't open up an opportunity for them to not address that what I believe is a very serious concern also.  So I appreciate your response.  Thank you.


SENATOR CROSBY:  Thank you, Senator Maurstad.  Any further discussion on the McKenzie amendment?  Seeing none, Senator McKenzie, would you like to close?


SENATOR McKENZIE:  Thank you, Madam President, yes, I would and just briefly, certainly we will look at the change that this amendment is making between now and Select File.  If we believe, Senator Maurstad, that it has omitted any specific concern or does not specifically address looking at the federal regulation in our state law and state regulations so as to try to come closer to federal rules and regulations that we can certainly add the language back.  But at this point I think we are all right in striking that language.  It was included in the beginning to be very specific and very strong in looking for ways that we could get some of what we had required loosened up for school districts and Educational Service Units.  I believe by inserting the rules and regulations below that we will accomplish the same task.  With that I would ask your adoption of the amendment.  Thank you.


SENATOR CROSBY:  Thank you, Senator McKenzie.  You've heard the closing.  The question is the adoption of the McKenzie amendment to the committee amendments.  All those in favor vote aye, opposed no.  We're voting on the McKenzie amendment to the committee amendments.  Have you all voted?


SENATOR McKENZIE:  Madam President, I would ask for a call of the house.


SENATOR CROSBY:  There is a request for a call of the house.  All in favor vote aye, opposed vote no.  Record, please.


CLERK:  9 ayes, 0 nays to go under call, Madam President.


SENATOR CROSBY:  The house is under call.  Would all senators please return to the Chamber and record your presence.  Would all unauthorized personnel please leave the floor.




SENATOR McKENZIE:  I'd accept call-in votes.


SENATOR CROSBY:  Thank you.  We're looking for Senator Lindsay, Senator Matzke, Senator Maurstad, would you like to check in.  Senator Brown, Senator Pirsch, Senator Preister, Senator Robinson, Senator Schellpeper, Senator Cudaback, Senator Elmer, Senator Vrtiska, Senator Janssen, Senator Fisher.  We're voting on the McKenzie amendment to the committee amendments and Senator McKenzie has indicated that she will accept call-in votes.


CLERK:  Senator Wesely voting yes.  Senator Schrock voting yes.  Senator Jensen voting yes.  Senator Robinson voting yes.  Senator Hartnett voting yes.  Senator Vrtiska voting yes.  Senator Jones voting yes., Senator Robak voting yes.


SENATOR CROSBY:  Record, please.


CLERK:  25 ayes, 1 nay on the adoption of the amendment.


SENATOR CROSBY:  The amendment is adopted.  I'll raise the call.


CLERK:  Senator, may I read some items, Madam President?


SENATOR CROSBY:  Yes.  Mr. Clerk, do you have items for the record?


CLERK:  Your Committee on Enrollment and Review reports LB 671, LB 856, LB 309, LB 805, LB 598, LB 739, LB 774, LB 140, LB 207, LB 693, LB 693A, LB 205 to Select File.  (See pages 1732-34 of the Legislative Journal.) Senator Chambers would move to amend the committee amendments.  (FA158 appears on page 1735 of the Legislative Journal.)


SENATOR CROSBY:  Senator Chambers, to open on your amendment.


SENATOR CHAMBERS:  Madam President and members of the Legislature, during this activity Senators McKenzie and Bernard-Stevens I refer to as McKenzie's Raiders.  I am the poor, little, undefended, defenseless individual in the middle of nowhere just trying to raise a few issues and we have talked about everything that it is I am offering.  Naturally, we're not going to agree on moving to the point I would like to see us move to, but so you'll understand that what I'm offering does




not come as a surprise to them.  What this amendment that I'm offering would do is strike subsection (3) of Section 2 of Senator McKenzie's amendment.  on page 1393 of the Journal you will see subsection (3).  It starts at the first line 20 on page 1393 of the Journal and it relates to language that we often refer to as intent language.  It specifies certain things that the Legislature is saying demand further examination and public discussion prior to implementation.  But after making that statement with which I agree, there is nothing which says none of this bill will be implemented unless these things are done or to say it another way, the bill does not say if these things are not done the rest of the bill will not be implemented.  It's an expression of a wish.  It's offered in the way of good advice, but it is not binding statutory language.  Since it does not bind these people to do anything, my amendment would strike it from the bill.  I have less confidence in these groups and organizations than my colleagues do.  My colleagues are those hopeless dreamers who think that if the Legislature expresses a desire in statute without making it a mandate, without there being any price to pay if it is ignored, my colleagues nevertheless believe that all of these individuals are people of such goodwill that they voluntarily will carry out these suggestions.  I think the suggestions contain ideas that are very worthwhile.  What has been done with this language is to show that the drafters of this bill are well aware of the serious problems that exist when you make a radical.  change of this kind.  The drafters of this language have acknowledged that those problems not only exist but they have not been resolved.  Instead of the Legislature resolving these issues, the Legislature is passing the buck.  The buck does not stop here.  The matter is sent for collaboration to the Special Education Accountability Commission, the School Finance Review Committee, the State Department of Education and the Education Committee of the Legislature.  We have broth that we are preparing.  When you have too many cooks, what happens to the broth?  The broth is spoiled when you have too many cooks.




SENATOR WESELY:  One minute.


SENATOR CHAMBERS:  I've talked nine minutes, Senator Wesely?


SENATOR WESELY:  No, you're right.  You...




April 19, 1995 LB, 742




SENATOR WESELY:  ...  have six minutes.


SENATOR CHAMBERS:  Thank you, Senator Wesely.  What I thought Senator Wesely would say when I said ""as usual", he'd say, "yeah, just like Rush Limbaugh", but he missed that opportunity.  But in any case, the reason I want to strike this language or I'm offering the opportunity to strike it is that we're placing a responsibility on these four groups to do something.  But it's in the nature of a request that they do it.  There's an acknowledgment that it ought to be done before anything in this bill takes effect, but there is nothing which says the bill will not take effect if these things are not done.  So I'm going to listen to Senator McKenzie.  I'm going to listen to Senator Bernard-Stevens and hear how they explain to us that this language should be in the bill, that somehow it's going to lead to a considera ...  well they use the term these things should be addressed.  How it will lead to these things being addressed and what the term addressed means, based on how they view the language that they are putting before us.  If you look at subdivision (a), how to establish the basis for distribution of the block grants.  Doesn't it seem to you that before there is, any distribution of anything under a block grant that should be determined?  So we should not have any implementation of any part of the bill that would relate to anything being done with reference to block grants and maybe there won't be.  (b), letter b, how to provide for the financial support of students with extremely disabling conditions and extraordinary needs which result in high costs to school districts.  That is something which definitely needs to be addressed and while I'm on that point I'd like to mention something that Senator Bromm brought up earlier.  He was pointing out his view of what I said about why I didn't think there should be the same percentage increase in special education aid as the increase in general education aid.  He pointed out correctly, and we agree, that the amount spent per student in special education starts out at a higher amount than that for a general education student, so obviously a 5 percent increase of a larger amount is going to be more in term of actual dollars than a 5 percent increase of a smaller amount.  In other words, 5 percent of a grapefruit would be larger in actual size than 5 percent of a tangerine if the grapefruit Is an ordinary size grapefruit and the tangerine is an ordinary size tangerine, so with that I agree.  Here's where Senator Bromm and I probably part company.  I think with the way




general education progresses, a 5 percent increase in general education may achieve a goal that is deemed necessary, but to make an equivalent amount of progress for a special education student may require more than a 5 percent increase of the education amount, special education amount that we spend.  In other words, if somebody can walk upright with, no, problem because their legs are not crippled or weakened in any way, they can run up 20 stairs a lot faster than somebody on crutches can get to the top of 10 stairs.  So if we're going to try to let this person with the crutches reach the 20th stair, it's going to take more time depending on the tilt of the stairs and how large each step in that staircase would be.  The person may need something in addition to his or her crutches to mount those, stairs.  So the point I'm trying to make is this, a 5 percent increase in general education aid for a general education student may achieve more for that student than a 5 percent increase in special education aid would achieve for the student in special education.


SENATOR WESELY:  Now it's one minute, Senator Chambers.


SENATOR CHAMBERS:  Thank you, Senator Wesely.  And you are right this time, unlike "Slush Slimebaugh" who in my opinion always is right but is never correct and he said he'd rather be right than president, he's never one and he'll never be the other.  I thought I'd go on and use that minute in that way.


SENATOR WESELY:  Thank you, Senator Chambers.  We're now ready for others to speak on the Chambers amendment.  Next we have Senator McKenzie.


SENATOR McKENZIE:  Thank you, Mr. President and members of the Legislature.  Senator Chambers, I certainly would agree with your concern about Section 3 especially in light of the fact that we have outlined a number of concerns that have come to the committee, to me personally, to Senator Bernard-Stevens, to Senator Bromm as we've discussed how we move from a reimbursement system to a block grant approach.  Lot me remind you of one point that I think you understand but just to be sure, the block grant approach would not begin until 1997 and this language is here to try to address the numerous concerns that have been brought up in discussions about how do we do a block grant.  And I would be more than happy to work with you between now and Select File to include these specifics and in fact to connect those in some way to the accomplishment of the




goal if we move to a block grant to make sure that we are going to have a new system that works and that gets more of the resources delivered to the students than...  instead of to administration and to the people filing papers and to all the other secondary places that the money tends to go at times.  But again, the language that is here includes all of the various concerns that have been brought up.  I believe it's important to keep those in the bill some place, but certainly I think that it can be looked over and worked through and clarified in terms of determining which agency or commission is responsible for these various concepts and then how ,.a know in fact that they are going to be related to the block grant approach once we begin that in '97.  Thank you.


SENATOR WESELY:  Thank you, Senator McKenzie.  We now turn to Senator Bernard-Stevens on the Chambers amendment.


SENATOR BERNARD-STEVENS:  Thank you, Senator Wesely, members of the body, again, briefly I concur with Senator McKenzie that I'm not supportive of taking this particular section out, but there are some details that we may be able to work on between now and Select that may be a better way of doing it.  But one of the things I'm very comfortable of doing at this stage at least is in this particular section it does specifically, as Senator Chambers points out, points to a lot of areas that are going to be very difficult decisions and some that may in fact be very controversial decisions.  And I think that's ...  Senator McKenzie and I and Senator Bromm have wanted to be as up front as possible, trying not to hide anything, not trying to slide anything through but say, look, here are some of the issues.  The fact ...  the issues that we've identified is probably the most crucial and possibly the most controversial that we want to make sure that they look at.  Do we need to list these?  No, probably not.  Is it good I think to at least in the beginning to list so that people are aware?  Yeah, I think it is.  And it does make some of the people a little bit more comfortable if some of the areas that they're concerned with is specifically mentioned as one that should be looked at.  Does that mean that even if they're listed they will be looked at in a way that the senators would particularly like?  No, not necessarily.  If we don't have the intent in here, does that mean that they won't look at all these areas anyway?  Probably ...  no, it doesn't mean that either.  But at this stage of the debate I think it is good to put these things forward, to put what the intent is and all the areas that need to be looked at and I'm comfortable in keeping this section




in at this point in this stage in the debate.  So at this point I would oppose the Chambers amendment, but I appreciate the fact that he is talking about some of these important points and I think that is a valuable service.


SENATOR WESELY:  Thank you, Senator Bernard-Stevens.  Senator Chambers.


SENATOR CHAMBERS:  (coughs) As Senator McKenzie said, I'm all choked up for a reason other than being concerned about this bill.  I'd like to ask Senator Bernard-Stevens a question.


SENATOR WESELY:  Senator Bernard-Stevens.




SENATOR CHAMBERS:  Senator Bernard-Stevens, are you looking at page 1393 so you can stay with me?




SENATOR CHAMBERS:  Let's say that we leave everything in subsection (3) exactly as it is, then come with me to line 17 which is about the fourth line or the fifth line from the end of this underlined material so you'll know which 17 I'm talking about.


SENATOR BERNARD-STEVENS:  In the section that would be stricken?






SENATOR CHAMBERS:  Now suppose we do this, we leave everything else like it is, then in line 17 starting there we strike, "It is the intent of the Legislature", we strike that.  Then we capitalize the word "these" and we say, "These issues shall be addressed by these groups," and after the last word in that group we add, "and unless they are no part of this law shall be implemented".  No part of this law shall take effect, in other words, unless these things are done.  We could phrase it however way you wanted to.  We could put the phraseology at the top or at the bottom, but make it have meaning by saying because these matters are so important that unless they are addressed, no part of this law shall take effect.  And before you answer that, let




me touch on something Senator McKenzie mentioned.  She mentioned that the bill, the part about the block grants wouldn't take effect until 1997, but if they choose not to deal with what we have in subdivision (a) of subdivision (3) which says how to establish the basis for distribution of the block grants, since all this is is a suggestion, by 1997 they still do not have to have addressed that.  They don't have to address any of these things.  Now let me ask you the question since you know what I want to ask you and then you can get to the other one and I'll reask that.  There is nothing in the language as it exists now which mandates that this be undertaken that we find in this subsection (3).  Is that correct?


SENATOR BERNARD-STEVENS:  To my knowledge that is correct.


SENATOR CHAMBERS:  Okay.  Now is here is the first question that I had asked which I would like you to answer.  Would you be in favor of drafting language which makes it clear that if these matters are not dealt with, and I might want to take a different term than dealt with or address, but whatever word or language we use, if these issues are not dealt with, no part of the bill will take effect.


SENATOR BERNARD-STEVENS:  On part two I could agree with that on the block grant portion.  I think the first part that's the funding portion where we put the cap on at the present 122 tied in with growth, that I think needs to take place.  We need to start there to create the mechanism, make things flow.  if you're concerned on the block grant side that nothing they do on the block grant side would take place until they have addressed these particular issues and those others that may be added, I would be willing to work with you on that language between now and Select.  I have not ...  personally I do not have as much difficulty with that because that is in fact the intent that they do that.  So I would be ...  the answer I guess is kind of part two I'd be agreeable with, part one, no, I think we need to do that one so I couldn't save anything in the bill, if you follow where I'm going with that argument.




SENATOR WESELY:  One minute.


SENATOR CHAMBERS:  ...  but to help those who may not have followed you as I have followed you, you're saying that you




would want a cap put in place if we didn't do anything else.  That's what you're saying, isn't it, that the capping would have to occur?


SENATOR BERNARD-STEVENS:  I think that's the first initial step that has to occur for all the other steps to follow.


SENATOR CHAMBERS:  Now isn't that what the bill originally was intended to do, to create a cap?


SENATOR BERNARD-STEVENS:  No, the bill ...  yes, the bill originally just put a flat cap in, no growth, no looking at what it's going to do to other school districts, no attempt to look at other funding mechanisms like this bill is, no attempt to looking at block grants, no attempt to even giving the Legislature the right, which this bill does, to appropriate an amount that we wish to appropriate.  It's simply an unequivocally set cap.


SENATOR CHAMBERS:  Before I run out of time, and you're willing to go back to that idea of just a flat cap...


SENATOR BERNARD-STEVENS:  Tied in with growth.


SENATOR CHAMBERS:  ...  if that's all we can get.


SENATOR BERNARD-STEVENS:  No, no, tied in with growth.




SENATOR WESELY:  Time is up.


SENATOR CHAMBERS:  ...  and my time is up ...  okay.


SENATOR WESELY:  Senator Chambers, yours was the last light, so if you'd like to close on your amendment or would you wish to...  okay, Senator Chambers.


SENATOR CHAMBERS:  Mr. President, members of the Legislature, I want to ask Senator Bernard-Stevens if he really understands what I was asking.  My question, Senator Bernard-Stevens Stevens, was this.  If each and every one of these items listed in subsection (3) is not addressed in the manner that the subsection says they should be addressed, would you be in agreement with the idea that no part of the bill would take




effect?  My understanding of what you said is that you would want the cap to take effect and then you mentioned something about growth.  That's what I would like you to clarify for me but don't take all my time.


SENATOR BERNARD-STEVENS:  I have also punched my light on so if we need more time we can have it.  Senator Chambers, what I'm trying to get across is I believe in the concept as an entire package, but the concept that I'm more comfortable with, I was not comfortable with the flat cap.  I would have voted to kill that bill on just a flat cap, that's it.  It was irresponsible I think.  It did not address any of the issue and it simply dumped upon the state the responsibility to the local level which are hamstrung anyway.  I am comfortable with a cap that's tied into growth that also when you go on the time line and you go over the last portion of that funding mechanism, where that portion then would be ...  the cap would be repealed and the Legislature then would establish what the proper funding would be, which we talked about earlier, with a very negative child oriented Legislature may be lower or if we had a very pro special education, pro Legislature, proactive Legislature, might be higher.  I'm more comfortable with that.


SENATOR CHAMBERS:  Okay, now, Senator Bernard-Stevens , how much time will elapse between when this bill will, take effect, if it's passed, and when the cap ceases to be?


SENATOR BERNARD-STEVENS:  As the bill is written now the ...  where it ceases to be would be the year '97-98.


SENATOR CHAMBERS:  Now what could happen between the time this bill takes effect and '97-98 to special education students if more legitimately needs to be spent than the amount allowed under the cap?  There would have to be a prorating, wouldn't there where you say we have this amount, it's not enough to meet the needs of these students, so we're going to have to find some way to divide it up.


SENATOR BERNARD-STEVENS:  I believe, again, not to dodge the question, but I believe as we go further on the bill on Select File I think what you will find is that the amount that we're spending now is the cap and I think what you'll find is that there will be an amendment that we will agree to and again maybe not in which case we'll have to review this answer, but if we do agree with the amendment that would actually put the growth in




that first year so there would not be just a year of a flat cap.  The first year would be the cap plus the growth factor as well.  And I understand, my sense is that we would be able to hold on where we are now adequately at that level of where we are now with that provision in there.  However, you are correct, if we don't come forward with the rest of the thing in the time line, there would be stresses on those program levels and we would have to next year, I assume, come back with an extension of that time line because there would be difficulties that we do not wish to create.


SENATOR CHAMBERS:  But if this bill were put in place in the form that it is now, that cap would be absolute.  Isn't that correct?


SENATOR BERNARD-STEVENS:  For the year '95-96, that is correct.


SENATOR CHAMBERS:  Right.  And if that turned out to be less than the amount needed to meet the needs of these students, that money which is available would have to be prorated.  You ought to spread it out according to some formula or other.


SENATOR BERNARD-STEVENS:  They would not have the dollars to meet their needs.


SENATOR CHAMBERS:  And how would that proration occur?  Would it be if you've got 10,000 students throughout the state, I'm trying to take an easy number for myself, you would divide the 10,000 into that total amount you have and that would determine how much would be made available for each one of those students?


SENATOR BERNARD-STEVENS:  Actually I think it would be a little bit different.  Senator McKenzie may want to add in, but if in fact the programs are mandated and many of them may be with -the state mandates that we have as well.


SENATOR WESELY:  One minute.


SENATOR BERNARD-STEVENS:  If we don't provide the monies and they had more growth, they probably will have to hit the local level to find the, dollars for or that and what you'll find happening is if they don't raise the levy and/or increase the amount of property taxes collected to make up the difference, .other programs in the school systems of math, science, social studies and other programs would in fact be reduced, cut so that




monies would be transferred into special education because of .the mandates there.  So I don't believe they'd ever have less dollars.


SENATOR CHAMBERS:  Since the time is up I won't ask Senator McKenzie, but maybe at some point, since your light is on, you and she could engage in a discussion so we'd know how the money would be distributed if that occurred.


SENATOR WESELY:  Thank you.  Time is up, Senator Chambers.  We now turn to Senator Bernard-Stevens.


SENATOR BERNARD-STEVENS:  And again to carry on that discussion, that's one of the points Senator McKenzie was making earlier, this does not, even with the cap, it causes things to happen but it does not necessarily make the Draconian changes that people think may occur.  The fact is that most of these areas are mandated either by the federal or state and those are the ones we're going to be looking at as beat we can and Rule 51 for flexibility.  If in fact you cap, then what happens, Senator Chambers, is that a school district must pay for those services because those students have civil rights and we have a responsibility to educate those children.  So if we do not fund it through the dollars that we have available, they must fund it or face a lawsuit and they will fund it.  What they would then have to do is to hit their property taxes harder and ask the people to give more dollars so that they cannot make any other cut systemwide and do the increased dollars that we did not give them that they now have to do or in fact, what probably would take place is what's happening now is school boards are trying not to go and ask for more dollars on the.  property tax, they would begin reducing other programs on the general ed side, taking those dollars and transferring it to special education.  And, Senator McKenzie, if you want to add to that, I'd certainly give you the rest of my time.


SENATOR McKENZIE:  Thank you, Senator Bernard-Stevens.  Clearly because we are in a reimbursement system, excess cost reimbursement, if in fact the state had a cap and there are 25 other states who do cap this money by the way, if we had a cap with X number of dollars, remember we're reimbursing for the year which has past.  So if we only have $122 million and we have bills submitted to the state for school spending for excess cost at $150 million, the amount that each district would receive out of their reimbursement would be prorated, as I




understand, to whatever level that is.  You will talk to superintendents who tell you that they're really only receiving 60 percent right now from the state and they're picking up the other 40 percent, and there are those who will tell you they're really getting 90 percent.  But David Bernard-Stevens argument about who would pay that gap when we're not getting to 90 is correct.  It would be local resources.  It would have to be local resources because these civil rights are protected and we cannot work around or eliminate those services for children who have been Identified.


SENATOR WESELY:  Thank you, Senator McKenzie.  Senator Chambers, to close on your amendment.


SENATOR CHAMBERS:  Mr. President, members of the Legislature, I can see that this amendment has about as much chance of flying as that statue of Abraham Lincoln out there or it has as much chance of flying as Abraham Lincoln has of sitting down out there.  And I'm not going to argue this amendment until Abraham Lincoln's statue sits down.  But here is what I would like to ask Senator BernardStevens.  Senator Bernard-Stevens, if we're at the point where block grants are given and we're not on a reimbursement basis, if the block grant Is given, will it be given in advance based on what needs are determined are likely to arise?




SENATOR CHAMBERS:  Okay.  Now and we're speaking in very general terms.  If a district uses less than the amount in that block grant for special education purposes, do they have to refund money to the state?


SENATOR BERNARD-STEVENS:  The concept is no.  In fact, that is the incentive in there is that the more efficient that they will become, maybe it's on the identifying factor, maybe it's in the working with the IEPs and the other instructors, but that they would be able to have the flexibility of those dollars to put into more dollars into zero to three or some of the other programs that have been very, very effective.


SENATOR CHAMBERS:  Now let me ask you this.  if they do have extra money, could they put it in band uniforms if they chose to?




SENATOR BERNARD-STEVENS:  I believe that we would have some restrictions on that.


SENATOR CHAMBERS:  Could they use it to equalize the disparity between male and female athletic programs?


SENATOR BERNARD-STEVENS:  I would hope not and I think we'll make sure, hopefully make sure that would not happen.


SENATOR CHAMBERS:  But right now they could, based on the fluid state of what it is we're dealing with.


SENATOR BERNARD-STEVENS:  With the understanding of the general concepts, I think they know we won't, but certainly when the legislation comes in in the next year we'd have to clarify.  That is correct.


SENATOR CHAMBERS:  Now these districts could also not just do a better job of screening, but actually take children who are special education children and not put them in special education programs in order to have more money and say we're going to reduce the property taxes on people in our district by taking this money from these special education children and using it for something else that property taxes would have to go for.  Couldn't they do that also?


SENATOR BERNARD-STEVENS:  They could, but on the other hand, they're going to be facing a much higher cost because of the lawsuit that would follow.


SENATOR CHAMBERS:  How do we know that in these districts in outstate Nebraska, if you don't mind me using that term, will have some family who will have the wherewithal to go to a lawyer who will take a case to challenge the district in terms of their child not being put in a special education class?


SENATOR BERNARD-STEVENS:  Because the families that have been struggling in this area for years have gone by their bootstraps, if you would, with anything that they could do to get to the point where we are today.  And there are the advocacy groups that are out there now, the mentor groups that are out there now, that are in fact working with the students and the families and they know that if they don't get certain things that there is a remedy for them within the courts so I'm comfortable that will happen.




SENATOR CHAMBERS:  Okay.  Now those questions were kind of by way of diversion.  You get their attention with this trick if you're an illusionist and do the trick with the other hand.  Here is the real question I want to ask you.  Is there an incentive right now for some children who should not be put in special education categories being put there because that will bring more money...




SENATOR CHAMBERS:  ...  to these districts?


SENATOR BERNARD-STEVENS:  Yes.  There is an incentive to identify special education students.


SENATOR CHAMBERS:  And I know of, thank you Senator Bernard-Stevens, I know of instances where that has happened.  It has caused me great resentment.  I think it is unfair to the children and these are some of the things which, if this bill can address, I will be more favorably disposed to it, but I don't see those things in the bill right now.  I'm opening the door to you and Senator McKenzie, McKenzie's Raiders that is, to win me over and I'm not saying my one vote will make that much difference.  But the interests that I have are genuine.  I want those children who have special education needs to have those needs met, but I don't want children who should not be put in a special education category and cheated out of the opportunity to be in a mainstream setting to be so cheated.  And, Mr. President, I'm going to withdraw that amendment.


SENATOR WESELY:  Thank you, Senator Chambers.  The amendment is withdrawn.  We're now back to the committee amendments.  Any further discussion?  If not, we turn to Senator McKenzie to close on the committee amendments.


SENATOR McKENZIE:  Thank you, Mr. President and members of the Legislature.  I thin% we have just begun the discussion and the many questions that we will have over the changes in the system, changes in funding, changes in moving toward a block grant approach and certainly I think today has just been the beginning of many other hours of discussion on Select File in addressing specifically how we go about making this change.  And if you remember in my closing on the amendment to the committee amendments I talked about an old 1973 Chevy which we may or may




not call old and Senator Jensen winces.  He must be a Ford-man.  But I would argue that it's a lot harder to rebuild a car piece by piece than it is to go out and buy a new one and that's really what we are about here.  This is the beginning of a process.  The specifics are not in the bill, the specifics are not in the amendment.  Certainly many of the concerns and the directives are in the amendment, are in the bill based on the testimony and the conversations we've had with the advocacy groups, with school boards, with superintendents, with special education directors, and let me add general education teachers.  There are good and bad stories on both sides of this issue.  Senator Bernard-Stevens is correct in saying that a reimbursement system does encourage the identification of children and we know that children who wear a label, especially a label of special education, are often children who are treated differently, provided fewer opportunities, teachers have lower expectations.  We've seen inclusion and cooperative learning efforts in the last five years in order to get those children more in the mainstream than when we had them separate in a class.  Those are some of the arguments that come to play when we talk about how we deliver services and what we do.  On the other hand, we know that if we open this up for more flexibility at the local level, if we go to a block grant, we're going to have other new problems.  We're going to be concerned about whether we do identify children who need to be served.  We're going to be concerned about accountability.  What do we do with the money that is given to the school?  Does it get to the children?  Is it being spent on their programs and services or is it being spent for something else?  On the other hand, I think it allows us to do some more creative things and to utilize the resources of regular education more which is what we should have done all along.  Again, briefly, we will expect to have for you on Select File an amendment addressing unique needs, we will be addressing some of the language that dealt with how the block grant system should be delivered, who should be doing which part of the study process, how we can guarantee that in fact something will happen between now and the beginning of the block grant approach.  I would ask for your support of LB 742 on advancement to Select and would yield the remainder of my time to Senator Bernard-Stevens if he would wish.  Senator Bromm, would you wish for any time?  Thank you.


SENATOR WESELY:  Senator Bromm.


SENATOR, BROMM:  Thank you, Senator McKenzie.




SENATOR WESELY:  You have a minute and a half.  Senator Bromm.


SENATOR BROMM:  And thank you, Mr. President.  This has been a good debate to the extent that it has gone today and I appreciate the points that have been brought up and questions, the many, many questions that have been asked.  Senator McKenzie has very capably answered them and appreciate the work of she and Senator BernardStevens on the bill and the various points many of us have tried to bring out.  Just in closing I want to emphasize that this product is not in total final form.  I think there will be some changes between now and Select File that we'll look at on Select File.


SENATOR WESELY:  One minute.


SENATOR BROMM:  But I think we have a very good start at attacking the problem.  The body has been, for the most part, very participating and attentive today and I think the bill will become even better as it gets through the system.  It's going to be a challenge for all of us to try to explain this to our constituents and especially to those who have children who are receiving special ed services.  I think it's very important that we tell them back home that this bill does not cut out anything at this point.  It maintains a funding level that it is now, provides for some growth in the future as educational costs grow.  The specifics will be here next year and that's the time for us to look at what it actually will do or won't do with kids and...




SENATOR BROMM:  ...  we need to keep that in mind.  Thank you, Mr. President.


SENATOR WESELY:  Thank you, Senator Bromm.  The motion is to adopt the committee amendments to LB 742.  Those in favor vote aye, those opposed nay.  Motion is the adoption of the committee amendments.  Have you all voted?  Clerk, record.


CLERK:  25 ayes, 0 nays, Mr. President, on adoption of committee amendments.


SENATOR WESELY:  The committee amendments are adopted.  We now turn to Senator McKenzie to open on LB, 742.




SENATOR McKENZIE:  Thank you, Mr. President.  I consulted with the McKenzie Raiders, although I believe we renamed ourselves the Three Musketeers, and would tell you I think we've had adequate discussion.  We certainly look forward to more discussion on Select File.  This is an important issue, very, very big challenge for us to take on.  Appreciate the dialogue and the concerns and questions from all the members this morning and this afternoon and would ask for your support in advancing 742 to Select File.  Thank you.


SENATOR WESELY:  Thank you, Senator McKenzie.  The Chair recognizes Senator Chambers.


SENATOR CHAMBERS:  Mr. President, members of the Legislature, the culture corner is at it again.  I can't resist.  The Three Musketeers, yes, they existed, but the most famous was the fourth one named D'Artagnan.  Some people say that translates to Dart Man.  I'm not sure whether it does or not, but if they do a good enough job they may get a fourth member to their team.  I voted for the committee amendments because they are better than what the original green copy of the bill had been.  Because Senator McKenzie and her Raiders have shown such a willingness to work with people on this very serious matter, and I'm not sure what my ultimate vote will be, I'm not going to prolong the discussion at this time.  I'm not going to raise again the concerns I have about the bill, but I'm unable to vote in favor of advancing it.  If I had to vote yea or nay on final passage right now, I would vote no.  I don't know enough about the bill.  It doesn't have enough in it that gives me the assurances that I would have to have to cast a yes vote for it.  I'm not arguing against its advancement because there is much work to be done and I'm sure it will be done, but at this point I.  simply can't vote in favor of it.


SENATOR WESELY:  Thank you, Senator Chambers.  The Chair recognizes Senator Robinson.


SENATOR ROBINSON:  Mr. President, members of the body, I stand to support the passage or the movement of LB 742.  1 think Senator McKenzie has really done an outstanding job of answering questions.  Now I know she had to pull a couple of other people along with her, but I think she really did a good job.  Senator Bromm did good.  He had to get off his phone there and I don't know, there was some fellow running back and forth between the




back here and Senator McKenzie's desk, but I think the special ed question has been debated very fully and I think there's some very good things in there and we'll look forward to Select.  So I'd encourage all of you to vote for the advancement of LB 742.  Thank you.


SENATOR WESELY:  Thank you, Senator Robinson.  Is there any .further discussion on the motion to advance LB 742?  If not, the Chair recognizes Senator McKenzie to close.  Senator McKenzie waives closing.  The motion is to advance LB 742.  Those in favor vote aye, those opposed nay.  Have you all voted on the motion to advance LB 742?  Clerk, record.


CLERK:  28 ayes, 0 nays, Mr. President, on the advancement of 742.


SENATOR WESELY:  LB 742 is advanced off General File.  Next bill, LB 559, Mr. Clerk.