Legal Alert - AB 1938

10.17.2024

On September 28, 2024, Governor Newsom signed Assembly Bill No. 1938 into law amending California's special education laws to better serve students who are deaf, hard of hearing, or deaf‑blind.

The law adds Section 56040.6 to the California Education Code which statutorily requires local educational agencies (LEAs) to consider the full language access needs of deaf, hard of hearing, or deaf-blind students when implementing inclusion and universal design for learning (UDL) initiatives. It mandates that individualized education program (IEP) and individualized family service plan (IFSP) teams take into account not only the students’ communication and language needs, but also opportunities for direct communication with peers and professional personnel in their preferred language and mode of communication, academic level, and full range of needs. Any decision regarding placement and services must also ensure it is in the least restrictive environment (LRE) possible for the student, consistent with both state and federal regulations.

AB 1938 emphasizes the importance of stakeholder and parent engagement, making it important for schools to facilitate open communication and collaboration. LEAs will be required to consider several new factors when creating educational plans for students who are deaf, hard of hearing, or deaf-blind. For example, Section 56040.6 includes the following language:

(8) The importance of obtaining stakeholder input from deaf, hard of hearing, or deaf-blind individuals and experts from nonprofit organizations serving deaf and hard of hearing individuals.

(9) The importance of actively involving and respecting the input and choices of the parents or guardians of pupils, by including all of the following:

(A) Considering a pupil’s language development as specified in paragraph (2) of subdivision (a) of Section 56326.5 and subdivision (d) of Section 56345.

(B) Considering a pupil’s academic progress.

(C) Considering a parent’s or guardian’s knowledge and understanding of their child’s unique needs, including their insights into the child’s language and communication preferences.

(D) Facilitating meaningful participation of a parent or guardian in all team meetings and decision-making processes, ensuring their choices are documented and considered in the development and review of the individualized family service plan or the individualized education program.

AB 1938 reinforces the need for schools to provide inclusive, communicative environments for students who are deaf, hard of hearing, or deaf-blind, ensuring their education is tailored to their needs. Schools must balance providing a free appropriate public education (FAPE) that is also the LRE for the affected student by potentially offering individualized language support services to ensure compliance with the new law. While this may require adjustments to current resources and programs, AB 1938 appears to be a legislative intervention to more closely align LEA obligations for individuals with communication related disabilities pursuant to the Americans with Disabilities Act as set forth in 28 C.F.R. § 35.160. As a result of this change to the law which is technically in force as of January 1, 2025, with further guidance expected from the Department of Education later in 2025, public school districts, county offices of education and charter schools will be contemplating different approaches with respect to staffing, training, and implementation consistent with prevailing state and federal laws.

If you have any questions on how to support your school in meeting the mandates of AB 1938 (soon to be Education Code Section 56040.6), please contact your AALRR special education legal counsel for assistance.