Framework for Labor-Management Collaboration Jointly Issued by Governor and Statewide Organizations

April 2020
Number 20

On April 1, 2020, Governor Gavin Newsom announced that California labor and management organizations have jointly agreed to a framework for collaboration during the novel coronavirus (COVID-19) emergency. The announcement comes at a time when local education agencies (LEAs) and bargaining units across California are working together to resolve issues related to the evolving developments and growing uncertainties related to COVID-19. The framework is intended to assist LEAs and bargaining units negotiating agreements related to labor and management matters impacted by the implementation and delivery of distance learning, special education, and meals to students through the end of the school year.

The key components of the framework include:

  • School employees will continue to receive pay and benefits through the 2019-20 budget year, including temporary, hourly, exempt, and non-exempt employees.
  • Subject to executive orders, current law, regulations, and guidance, employees are not required to use accrued sick leave to comply with a medical professional’s recommendation, including quarantine, to secure their own health or secure the health of their household during the COVID-19 pandemic.
  • Schools and their employees shall continue to deliver education to students through any practical means, including distance learning and/or independent study.
  • Students in need shall continue to receive meals, utilizing measures that protect the safety of both students and school employees.
  • Schools shall provide adequate personal protective equipment (PPE), to the extent reasonably possible and consistent with the California Department of Public Health and the Centers for Disease Control and Prevention guidelines.
  • Labor and management should work together in gathering information, developing plans, and decision making to find the best path for students, employees, and communities.

This framework is neither binding nor a mandate from the State, nor is it intended to abrogate, amend, or affect current law, regulation, executive orders or agreements that have been entered into. The framework is solely intended to serve as a guide or aspirational framework for labor agreements. It does not affect any memoranda of understanding or other agreements already reached between LEAs and bargaining units.

LEAs are encouraged to consult with their legal counsel prior to acting on the information contained in framework and in order to respond to unions wishing to create agreements with provisions from this framework.

The Framework for Labor-Management Collaboration may be accessed at the following link: https://www.gov.ca.gov/wp-content/uploads/2020/04/4.1.20-Labor-Management-Framework.pdf.

Related Resources

The legal and practical realities of the current crisis are ever-changing. In our continued effort to equip public agencies with useful insights, we have compiled a suite of links to several resource and guidance documents and webpages available from the federal and state governments regarding COVID-19. You can access them here: http://www.lozanosmith.com/covid19.php.

For more information on issues arising from COVID-19, please contact one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Michelle L. Cannon

Partner

Courtney de Groof

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Governor Newsom Signs Two Bills Aimed to Assist Local Educational Agencies During COVID-19 Crisis

March 2020
Number 19

On March 17, 2020, Governor Gavin Newsom signed two bills, Senate Bill (SB) 117 and SB 89, into law which provide for emergency funding to help fight the novel coronavirus (COVID-19) pandemic and help to clarify the law as it relates to school districts. The bills address several issues confronting school districts, county offices of education, and charter schools. SB 117 provides necessary funding, ensuring that local educational agencies (LEAs) may continue to operate, and waives various requirements and deadlines otherwise required by law. SB 89 provides for significant funding to be used to assist individuals, nonprofit organizations, and small businesses experiencing economic hardships due to the impacts of COVID-19. Both bills took effect immediately. Below are highlights of each bill.

Senate Bill 117

School Funding.

For purposes of Average Daily Attendance (“ADA”) reporting to determine funding, LEAs need only report their ADA from July 1, 2019 to February 29, 2020, rather than July 1, 2019 to April 15, 2020. This has the effect of providing full funding for schools even if they are closed, provided they comply with Executive Order N-26-20, with the stated intent to ensure that employees and contractors are compensated and paid during the time that a school is closed due to the COVID-19 pandemic. Because the legislation did not include details related to this compensation piece, some districts are grappling with how best to implement this provision.

Similarly, the bill provides that for After-School Education and Safety programs, LEAs will receive funding based on the ADA they would have reported but for the school closure.

The bill also appropriates $100 million from the state’s general fund to be provided to certain LEAs for purposes of purchasing personal protective equipment, or paying for supplies and labor related to cleaning school sites, or both.

Instructional Time.

Schools that are closed are excused from the instructional time requirement. The requirement will be deemed to have been met upon written certification that the school was closed due to COVID-19 on a form unique to the current situation, rather than by following the typical waiver procedure.

Assessments.

SB 117 provides a 45-day extension for LEAs to administer English Learner proficiency assessments (normally required upon a pupil’s initial enrollment and at least annually during a four-month period after January 1).

SB 117 provides for an extension of the testing window to perform such English Learner assessments (English Language Proficiency Assessments of California or “ELPAC”), equal to “the length of time a school is closed due to COVID-19, or until the end of the testing window, whichever comes first.” The same extension applies to the testing window for the California Assessment of Student Performance and Progress (CAASPP), and the physical performance test.

On March 18, 2020, a day after SB 117 was signed into law, the California Department of Education announced that it had suspended all CAASPP testing and ELPAC testing for the 2019-2020 school year, and had placed the physical fitness test on hold until students returned to school.

Moreover, while not covered under SB 117, on March 20, 2020, Secretary of Education Betsy DeVos announced the United States Department of Education will grant a waiver to any state that is unable to assess its students due to the ongoing national emergency, providing relief from federally mandated testing requirements for this school year. Any state that receives this waiver may also receive a waiver from the requirement that this testing data be used in the statewide accountability system due to the national emergency. On March 26, 2020, California’s waiver application was submitted and the U.S. Department of Education issued its preliminary approval. The public comment period for all stakeholders and LEAs is open through April 15, 2020.

Special Education & Student Records.

SB 117 extends the 15-day timeline a district has to propose an assessment plan to determine if a student requires an Individualized Education Plan (IEP) by the number of days the school is closed-in effect, the 15-day period is paused during the time the school is closed and begins running once the school reopens and the regular school session reconvenes.

Under existing law, parents of special education students have the right to examine and receive copies of the student’s records within five business days, before any IEP meeting, and before any hearing or resolution session. The bill excuses LEAs that have closed from meeting these timelines, up until the school reopens and the regular school session reconvenes. However, the bill explicitly encourages LEAs to respond as expeditiously as possible to requests from parents or guardians received during the period of time a school is closed due to COVID-19. Because of what appears to be a Legislative oversight, some parents might assert that LEAs must respond to student records requests (within five business days), including the transfer of records to a student’s new school district (within ten schooldays), according to normal timelines. LEAs should assume that the rules applicable to records requests under SB 117 apply to all student records requests, resulting in the waiver of timelines until COVID-19 school closures end. Still, LEAs should respond to parent requests during this time period “as expeditiously as possible.” With this in mind, if an LEA knows that, due to COVID-19 school closures, it is unable to comply with a request for records within the normal five business day timeline or the timeline to transfer records to a student’s new school, the LEA is best served to provide notice of this in writing to parents who request records during this time period. Note that timelines under the IDEA and FERPA still apply. For advice on guidance on how to respond to records requests during closures, please see our CNB.

Charter Schools.

A charter school that does not have an independent study program or distance learning program in its currently approved charter petition does not need to submit a request to alter its charter petition to offer independent study or distance learning programs during the period of time the charter school is closed due to COVID-19.

State-Subsidized Childcare and Development Programs.

Such programs are exempt from attendance and reporting requirements, subject to guidance from the State Superintendent of Public Instruction to ensure the continuity of payments. Pursuant to guidance and direction from the Superintendent, childcare and development programs shall be reimbursed using the most recent certified record or invoice available.

Uniform Complaint Procedure.

Timelines included in the uniform complaint procedure are extended by the length of the school’s closure due to COVID-19.

Senate Bill 89

SB 89 appropriates $500 million from the General Fund-and up to $1 billion over time-to be used to provide assistance related to the impacts of COVID-19. The intent is to assist individuals, nonprofit organizations, and small businesses experiencing economic hardships due to the impacts of COVID-19.

Related Resources

The legal and practical realities of the current crisis are ever-changing. In our continued effort to equip public agencies with useful insights, we have compiled a suite of links to several resource and guidance documents and webpages available from the federal and state governments regarding COVID-19. You can access them here: http://www.lozanosmith.com/covid19.php.

For more information on issues arising from COVID-19, please contact one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Aimee Perry

Partner

Angela J. Okamura

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Important Update: The deadline to file the Annual Statement of Economic Interests (Form 700) has been extended from April 1, 2020 to June 1, 2020

March 2020
Number 18

In light of the current COVID-19 pandemic, the Fair Political Practices Commission (FPPC) has announced it is allowing a 60-day extension for those required to file a 2019 Annual Statement of Economic Interests (Form 700). As a result of this extension, Form 700’s normally due no later than April 1, 2020 will be accepted by the FPPC as timely filed if submitted by June 1, 2020. This extension applies to all officials required to file in April pursuant to Commission Regulations 18723 and 18730. This extension will likely be welcomed relief for many public officials in California required to file Form 700’s, and is in contrast to the FPPC guidance issued on March 17, 2020 indicating that the April 1 deadline could not be extended by state or local filing officers.

The FPPC still encourages annual filers to file as soon as they are able, in advance of the June 1, 2020 extended deadline. Those who have access to an electronic Form 700 filing system are encouraged to use it. If electronic filing is not available, filers can submit Form 700’s by mail. Statements postmarked on or before June 1, 2020 will be considered filed on time. The Commission intends to formally ratify this extension at its April 2 special meeting.

For more information on issues arising from COVID-19, please contact one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Scott G. Cross

Partner

Andrea Ortega

Law Clerk

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

California Supreme Court Sides Against School Districts in State Mandates Case

February 2020
Number 11

In California School Boards Association v. State of California ( CSBA), the California Supreme Court has allowed the Legislature to avoid appropriating new funding to cover the costs of state mandated programs. Instead, the Legislature is now able to point to existing, unrestricted state funding to satisfy the Constitutional requirement that it identify funding for such programs. In light of the court’s holding the Legislature may be incentivized to create new state mandated programs utilizing unrestricted state funding previously intended for school districts’ discretionary use. The reduction in unrestricted funding and the commensurate increase in state mandate programs threatens to erode local control of public education.

State Mandates in California

The California Constitution provides that when “the Legislature or any state agency mandates a new program or higher level of service on any local government, the State shall provide a subvention of funds to reimburse that local government for the costs of the program or increased level of service.” (Cal. Const., art. XIIIB, § 6, subd. (a).) The Legislature created a statutory process to implement this constitutional provision, including the creation of the Commission on State Mandates (CSM) which is responsible for hearing “test claims” from public agencies to determine whether the Legislature or a state agency has created a new “reimbursable mandate.”

Among other requirements, the CSM is prohibited from finding a reimbursable mandate if “[t]he state [or] executive order [alleged to impose the mandate] or an appropriation in a Budget Act or other bill provides for offsetting savings to local agencies or school districts that result in no net costs to the local agencies or school districts, or includes additional revenue that was specifically intended to fund the costs of the state mandate in an amount sufficient to fund the cost of the state mandate.” (Gov. Code, § 17556.)

The CSBA Opinion

CSBA involved two requirements the Legislature imposed upon school districts that had been previously determined by the CSM to be state mandates: (1) a science course graduation requirement; and (2) regulations related to behavior health interventions for students receiving special education and related services. The Legislature passed two bills requiring school districts to utilize unrestricted state funding for each of these mandates. These bills were challenged as violating the California Constitution’s requirement that the Legislature “reimburse that local government for the costs of the program or increased level of service.”

The Court reasoned the Legislature could have reduced school districts’ unrestricted state funding and provided new funding for the mandates at issue in an amount equal. The Legislature’s designation of unrestricted state funding for mandated costs was the functional equivalent.

The Court also described several permissible ways in which the mandate requirements of California Constitution could be met by the Legislature: (1) provide new funding; (2) eliminate a different program or funded mandate to free up funds to pay for a new mandate; (3) identify new offsetting savings or offsetting revenue; (4) designate previously unrestricted funding as prospectively allocated for the mandate; or (5) suspend the mandate and render it unenforceable for one or more budget years. Thus, the court affirmed the Legislature’s use of the fourth option listed here for the mandates at issue in CSBA.

Takeaways

The State high court’s decision provides the Legislature with additional flexibility to impose mandates on school districts because it can designate unrestricted funding to cover the costs of the mandate rather than providing new funding. As the Legislature burdens unrestricted state funding with the covering the costs of state mandates, there will be fewer dollars available for school districts to address local needs. The result could be a further erosion of local control of public education.

If you have any questions about the CSBA v. State decision or state mandates in general, please contact the author of this Client News Brief or an attorney at one of our eight officeslocated statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Sloan R. Simmons

Partner

Nicholas J. Clair

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Federal Families First Coronavirus Response Act: Temporary Employer-Paid Sick Leave and Employer-Paid FMLA Leave for Childcare

March 2020
Number 17

In response to the nationwide economic disruption and uncertainty resulting from the COVID-19 outbreak, Congress passed, and the President signed, the “Families First Coronavirus Response Act” (H.R. 6201), which became law on March 18, 2020. While H.R. 6201 provides federal assistance in a range of areas, this Client News Brief focuses on relief provided by H.R. 6201 in the form of employer-paid sick leave for individuals and families unable to work due to the virus or its effects.

Background

California public agency employees are granted a certain amount of annual sick leave by statute. Modified or additional paid leave may be available pursuant to collective bargaining agreements and/or agency policy. Up to half of an employee’s sick leave may also be used to care for a sick family member.

Emergency Paid Sick Leave Act

Under the unique circumstances resulting from the COVID-19 outbreak, H.R. 6201 established the Emergency Paid Sick Leave Act (EPSLA), which requires all public agency employers, regardless of size, and private employers with fewer than 500 employees, to provide temporary paid sick leave to eligible employees. Until December 31, 2020, full-time employees in the following subgroups will receive 80 hours (approximately two work-weeks) of employer-paid sick leave not to exceed $511 per day and $5,110 in the aggregate for any of the following reasons:

  1. Employees subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  2. Employees advised by a health care provider to self-quarantine due to COVID-19 related concerns; or
  3. Employees experiencing COVID-19 symptoms and seeking a medical diagnosis.

Employees taking leave for the following reasons will receive 80 hours (approximately two workweeks) of employer-paid sick leave at 2/3 their regular pay amount not to exceed $200 per day and $2,000 in the aggregate:

  1. Employees caring for an individual who meets the specifications in (1) or (2) above;
  2. Employees caring for a son or daughter due to school or childcare closure based on COVID-19 precautions; or
  3. Employees experiencing any other similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

“Son or daughter” includes a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is under 18 years of age; or 18 years of age or older and incapable of self-care because of a mental or physical disability. Part-time employees in all categories get the number of hours of paid leave equal to their average work hours over a two workweek period. This sick leave is available to any employee, excluding employees who are healthcare providers and emergency responders. There is no requirement that an employee have worked for the employer for any particular length of time. Employers must also post a notice of these requirements in conspicuous place.

The EPSLA creates a completely new bank of sick leave that an employee can elect to use immediately. An employer cannot force an employee to use other existing leave before using this new sick leave.

FMLA Expansion

H.R. 6201 also allows employees to receive employer-paid leave under the Family and Medical Leave Act (FMLA), under limited circumstances. Qualifying employers are private entities with fewer than 500 employees, and all public agencies already required to comply with the FMLA. While employers with under 50 employees are typically excluded from the FMLA, this exclusion is retracted for purposes of the temporary FMLA expansion. In addition, an employer is not required to provide such leave to employees who are healthcare providers or emergency responders. Until December 31, 2020, employees unable to work (or telework) because of their son or daughter’s school closure or unavailability of the child care provider due to COVID-19, are eligible to take up to 12 weeks of FMLA leave, paid as follows:

  • The first 10 days of the expanded FMLA leave are unpaid, but may run concurrently with alternative employer-paid leaves including paid leave under the EPSLA, should the employee choose to use paid leave.
  • For the remaining 10 weeks, the employee is eligible to receive two-thirds of their average monthly earnings, not to exceed $200 per day and $10,000 in the aggregate.

“Son or daughter” has the same meaning as stated above. Employees have access to this leave after having worked for the employer for 30 days, rather than the typical 1,250 hours over 12 months under the FMLA.

Tax Credit for Employer-Paid Social Security Taxes Not Available to Public Agencies

While the Act provides a tax credit for employer-paid social security taxes as an effort to reduce the financial burden from these new paid leave entitlements, this tax credit is only available for private employers and not for public employers. The Act does not seem to include reimbursement provisions for public entities that must provide the new paid leave. Additional guidance from the federal government on the topic of reimbursements may follow.

Takeaways

H.R. 6201 will go into effect not later than April 2, 2020. Until then, employees are able to use existing qualifying leave time if they are forced to miss work due to COVID-19. Leave granted pursuant to H.R. 6201 is in addition to any paid or unpaid leave employers already provide.

If you have any questions about H.R. 6201, FMLA or labor and employment issues related to COVID-19 in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Gabriela D. Flowers

Partner

Jenell Van Bindsbergen

Partner

Kate S. Holding

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Special Considerations for Students with Exceptional Needs Related to School Closures Due to COVID-19

March 2020
Number 16

Frequently Asked Questions – Part 2

Background

The following updates and expands on the Frequently Asked Questions (FAQ) we issued on March 12, 2020 (available here), which provided general guidance for K-12 school districts in responding to the needs of students with disabilities during the COVID-19 pandemic. Since that date, additional statutory and federal and state guidance has been issued, listed below. The information in this document is current through March 24, 2020, but is subject to change in light of this rapidly evolving situation and potential legislation from the federal government waiving certain IDEA requirements. We recommend you consult with a Lozano Smith special education attorney or your legal counsel before taking action based on these FAQs.

  • Governor Gavin Newsom issued Executive Order N-26-20 on March 13, 2020, addressing local educational agencies’ (LEAs) response to COVID-19 (Executive Order N-26-20);
  • Senate Bill 117 (SB 117) received Governor Newsom’s approval on March 17, 2020, and went into effect immediately upon signature, impacting, in part, special education timelines;
  • United States Department of Education Office for Civil Rights (OCR) on March 16, 2020, issued a “Fact Sheet: Addressing the Risk of COVID-19 in Schools While Protecting the Civil Rights of Students” (OCR Fact Sheet) and an accompanying seven-minute webinar (OCR Webinar);
  • California Department of Education (CDE) and the Health and Human Services Agency (HHS) jointly issued guidance on March 17, 2020, addressing, in part, the implementation of distance learning strategies and equity and access issues related to differential access to internet connectivity and technology (CDE Distance Learning Guidance);
  • CDE issued “Special Education Guidance for COVID_19: COVID_19 School Closures and Services to Students with Disabilities” on March 20, 2020 (CDE Special Education Guidance); and
  • OCR, on March 21, 2020, issued a “Supplemental Fact Sheet: Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities” (OCR Supplemental Fact Sheet).

As a means of providing general guidance to LEAs, this updated FAQ discusses the above, in the context of serving students with disabilities under the IDEA and Section 504 during school closures due to COVID-19.

1. Q: Does an LEA need to provide educational services to students with an existing IEP or Section 504 Plan if schools are closed due to COVID-19 concerns?

A: Yes. We recommend that LEAs provide educational services to both general education and special education students while schools are closed due to COVID-19.

(Note that this question was answered in our March 12, 2020 FAQ document. However, in light of the additional guidance note above, our answer has been revised.)

With the issues of Executive Order N-26-20, and the passage of SB 117, state funding is available for LEAs that continue to provide “high quality instruction.”

The CDE Distance Learning Guidance specifically provides that LEAs must “immediately” begin to develop Distance Learning Plans, for educating students and providing trainings to teachers and staff. Two major implications of the CDE Distance Learning Guidance are: (1) schools are strongly encouraged to provide some sort of educational opportunity going forward to all students, given that state funding is tied to the delivery of such services; and (2) schools must provide some degree of special education and related services during this crisis.

The CDE Distance Learning Guidance provides examples of what to include in a Distance Learning Plan, including a range and continuum of options to consider, including but not limited to:

  • in-school computer instruction;
  • classroom instruction (with social distancing);
  • work packets;
  • videoconferencing, and
  • online curriculum.

Note that two of these options contemplate students (and staff) returning to schools, and using social-distancing. The viability of these options are subject to change, and may be contingent upon state and local officials determinations and directives, including as the nature, extent and duration of county/city “shelter-in-place” orders, or other developing circumstances.

2. Q: Is an LEA permitted to provide optional enrichment activities to students as opposed to instruction during a school closure?

A: Per Executive Order N-26-20, an LEA can continue to receive state funding to support the continued delivery of “high-quality educational opportunities to students to the extent feasible” during a COVID-19 related school closure. However, “high-quality educational opportunities” is left undefined. When providing optional enrichment activities to students, an LEA should ensure that, those opportunities are accessible to students with disabilities, in an equitable manner, and comparable to those provided to the general student population.

3. Q: Is an LEA permitted to provide instruction to students in an alternative mode of education during a school closure?

A: Yes, LEAs that physically close schools should focus their planning efforts on how to continue serving students with disabilities by tailoring distance learning to provide educational benefit to those students, to the greatest extent practicable under the circumstances. At this time, California LEAs are not prohibited from offering distance learning or independent study to students impacted by a COVID-19 related school closure, and to the extent any state or local law may be interpreted to the contrary, that law is waived by Executive Order N-26-20. The CDE Distance Learning Guidance urges LEAs to develop distance learning plans immediately.

4. Q: If an alternative mode of education is made available to the general student population during a school closure, is the LEA required to make the same alternative education available to students with disabilities?

A: Yes, per the OCR Fact Sheet, if a student who has an IEP through the IDEA or is receiving services under Section 504 is not attending school for an extended period of time due to COVID-19, whether because required or advised to by public health authorities or school officials, provision should be made to maintain education services. If an alternative mode of education is made available to the general student population during a school closure, such as online instruction, tele-instruction, independent study, or some other form of alternative education that does not require “in-person” school attendance, the LEA must ensure that students with disabilities have equal access to the same opportunities, including the provision of a free appropriate public education (FAPE). (34 C.F.R §§ 104.4, 104.33 (Section 504) and 28 C.F.R § 35.130).

For students with disabilities, LEAs must determine on an individual basis whether each student could benefit from online or virtual instruction, instructional telephone calls, and other curriculum-based instructional activities, to the extent available, and in following appropriate health guidelines to assess and address the risk of transmission in the provision of such services.

5. Q: If an alternative mode of education is made available during a school closure, is the LEA required to make a FAPE available to students with disabilities?

A: At this time, the federal government has not waived the federal requirements under the IDEA. Accordingly, those obligations continue to apply. As a result, LEAs must ensure that, to the “greatest extent possible,” each student with a disability is provided special education and related services. (34 C.F.R §§ 300.101 and 300.201 (IDEA), and 34 C.F.R § 104.33). The same is true for those students with a Section 504 plan.

6. Q: What is distance learning?

A: By Executive Order N-26-20, the CDE and HHS jointly developed guidance addressing, in part, the implementation of distance learning strategies and addressing equity and access issues that may arise due to differential access to internet connectivity and technology. For purposes of this guidance, “distance learning” is defined to mean instruction in which the student and instructor are in different locations, which could include interacting through the use of computer and communications technology. It includes video or audio instruction in which the primary mode of communication between the student and instructor is online interaction, instructional television, video, tele-courses, or other instruction that relies on computer or communications technology. It may also include the use of print materials incorporating assignments that are the subject of written or oral feedback.

LEAs must assess their ability to deliver distance learning instruction both in an online setting and also in a non-technological setting, keeping in mind that not all students have access to devices or high-speed internet, and that an LEA may not be able to meet the needs of all its students through online instruction. The CDE Distance Learning Guidance includes appendices with guidance, resources, and strategies for providing online instruction to students with disabilities.

Finally, there are confidentiality and privacy considerations relating to distance learning. LEAs should be aware of and put in place steps to ensure that their usage of video, audio, or online interaction for distance learning purposes complies with state and federal data and other privacy laws, as well as LEAs’ own student data or other privacy policies.

7. Q: What if a student does not have a computer or internet access?

A: The California Constitution prohibits LEAs from requiring students to purchase devices or internet access, to provide their own devices, or otherwise pay a fee as a condition of accessing required course materials under the free schools guarantee, per CDE Guidance. LEAs should therefore assess whether a distance learning strategy would provide the most meaningful educational opportunity for students and, if so, steps they can take to ensure equitable access-which does not require, per CDE Guidance that LEAs offer the exact same content through the same channel for all students. Rather than abandoning e-learning because not all students will have equal access to it from home, the plan should include an analysis of alternate deliveries of comparable educational content. These alternate deliveries might include providing students access to a device or internet at school or a community site, consistent with social distancing guidelines. Therefore, in considering the development and implementation of a distance learning plan, LEAs are to assess the continuum of available strategies, with most schools needing to offer multiple options and a combination of strategies to students, depending on accessibility to devices and the internet. This includes considering the means by which students access content, such as by mobile devices like smartphones.

8. Q: Is there any guidance on including students with disabilities in distance learning?

A: Yes. LEAs should consider to the following in supporting students with disabilities in relation to distance learning:

  • Individualized Instruction in Distance Learning Settings. As an LEA considers options for distance learning, the LEA should generally assess the extent to which its students with disabilities will be able to attain educational benefit under each option.
  • Related Services. To the greatest extent possible, LEAs should continue providing related services consistent with the student’s IEP. This may involve providing services on one or more school sites consistent with social distancing guidelines and accounting for the health needs of students and staff.
  • Assistive Technology. LEAs should be flexible in providing access to school-purchased assistive technology devices when necessary, consistent with law, to ensure children have access to devices they typically use at school.

Related, last year’s Assembly Bill (AB) 605 requires that LEAs provide, on a case-by-case basis, the use of school-purchased assistive technology devices in a child’s home or in other settings if the student’s IEP team determines that the child needs access to those devices in order to receive a FAPE.

In addition, OCR’s March 17, 2020 webinar reminded LEAs of their obligations to ensure websites are accessible to students with disabilities. OCR advised that when LEAs are considering the use of online technology for distance learning during the COVID-19 pandemic, schools should keep in mind that many individuals are blind, have low vision, have mobility disabilities, are deaf, are hard of hearing, or have other disabilities such as seizure disorders or cognitive disabilities. As a result, OCR advised that it is important that websites and online learning are built and developed to be accessible to individuals with a variety of disabilities and compatible with the various forms of assistive technology these individuals utilize, such as speech-recognition software, eye tracking and pointing devices, and screen reader software.

9. Q. What if LEAs with school closures have students with disabilities who attend nonpublic schools that are not closed-should those students continue to attend their nonpublic schools?

A. Yes. LEAs are encouraged to work with nonpublic schools and agencies (NPS/A) to take advantage of services that can be offered by NPS/As that elect to continue to provide services during school closures. In addition, CDE Guidance encourages LEAs and NPS/As to work collaboratively to ensure continuity of services for students currently served by NPS/As, pursuant to the IEP, including exploring options related to distance learning. Also, because of continued funding provided to LEAs under Executive Order N-26-20 to offer educational opportunities to all students during school closures, LEAs are encouraged by CDE Guidance to review master contracts with NPS/As and explore options for payment given the likelihood of student absences and the fiscal impact on NPS/As.

10. Q. Can an LEA provide home hospital instruction to students with disabilities who do not have that placement offered in an IEP or Section 504 plan?

A: Home hospital instruction may be an acceptable form of alternative education for students with disabilities, but such a determination should be made on an individual basis. Typically, home hospital instruction is not provided to a student absent a specific medical reason and related documentation. Although by Executive Order N-26-20, only those state and local laws pertaining to independent study and distance learning are being waived, the implication is that the same would apply in relation to home hospital so as to ensure continued access to instruction.

11. Q. Does an LEA need to hold IEP meetings or Section 504 meetings during a school closure?

A: While IDEA timelines for holding IEP meetings (including, annuals, triennials, and IEP meetings to review assessments) are not waived, CDE states that for purposes of its compliance monitoring, CDE will not count days of school closure due to COVID-19. CDE also advises that, unless and until USDOE ultimately provides flexibility under the IDEA, districts should do their best to adhere to IDEA federally mandated timelines to the maximum extent possible. Districts are encouraged to consider ways to use distance technology to meet these obligations. OCR states as a general principle, during this unprecedented national emergency, LEAs are encouraged to work with parents to reach mutually agreeable extensions of time, as appropriate. It is also possible to conduct IEP meetings telephonically or via video-conferencing. During these times, it is advisable for an LEA to maintain communication with parents with regard to any delays, and seek consent to any timeline extensions, where appropriate. If there is a disagreement regarding the delay of a timeline, it is advisable to use a prior written notice (PWN). A PWN is required any time there is a dispute between a parent and an LEA regarding identification, evaluation or placement, and any time there is a proposal or refusal to assess, or make changes to, a student’s education program. (34 C.F.R. § 303.421.)

12. Q. If a referral is received during a school closure for an initial assessment to determine special education eligibility, must the LEA respond within 15 days?

A: No. Typically, if proposed, the assessment plan must be developed within 15 calendar days of referral for assessment, not counting calendar days between the student’s regular school sessions or terms or calendar days of school vacation in excess of five schooldays, from the date of receipt of the referral, unless the parent or guardian agrees in writing to an extension. SB 117 mandates that CDE permit an LEA with school closures due to COVID-19 to consider those school closure days as days between the student’s regular school session, up until the time the school reopens and the regular school session reconvenes.

13. Q: How should an LEA handle pending assessments during a school closure?

A: Given that IDEA timelines have not been waived (at this time), we recommend LEAs strive to meet timelines with minimal delay to avoid impacting students’ education, or seek waivers of the timeline from the parents of students. CDE also advises that, unless and until USDOE ultimately provides flexibility under the IDEA, districts should do their best to adhere to IDEA federally mandated timelines to the maximum extent possible, and should use distance technology to meet these obligations. OCR encourages LEAs to work with parents to reach mutually agreeable extensions of time, as appropriate.

School closures are likely to disrupt special education timelines, including those regarding assessments and IEP meetings to review assessments. In cases where there is a disagreement between parent and an LEA regarding extension of the 60-day timeline, we recommend using PWN.

14. Q: During the period of a school closure, how should an LEA handle a request for student records from a parent or an attorney or advocate on behalf of a parent?

A: Typically, LEAs must respond to a parent’s request for student records within five business days (whether for special or general education student records). SB 117 directs that the normal five business day timeline to respond to requests for special education student records “shall be waived if a school is closed due to COVID-19, up until the time school reopens and the regular school session reconvenes.” Note, however, even with the waiver of the timeline, SB 117 requires LEAs to respond to requests for student records from parents “as expeditiously as possible” during the period of school closures. Additionally, separate from state deadlines,to date the IDEA’s and FERPA’s 45 calendar day deadline for responding to student records requests has not been adjusted, and LEAs may still need to comply with these 45 calendar day timelines. (34 C.F.R.§§ 99.10(b), 300.613(a).)

15. Q: During the period of a school closure, how should an LEA handle a request for student records received from another school to which the student with a disability is transferring?

A: Typically, LEAs must provide student records to an LEA into which a special education student has transferred within five working days of the request from the student’s new LEA. As with parent records requests, noted above, SB 117 directs that the normal five working day timeline to respond to student transfer records request “shall be waived if a school is closed due to COVID-19, up until the time school reopens and the regular school session reconvenes.” Upon the reopening of schools by an LEA, the LEA should seek to transfer a former student’s records to the student’s new LEA within five working days.

Special Note on FAQs 14 and 15 Regarding Student Records Requests: As noted above, SB 117 waives the normal timelines for responding to student records requests until schools reopen following COVID-19 closures. In enacting this change, SB 117 expressly cites to the records request statutes which generally apply in the special education context (Education Code sections 56043, subdivisions (n) and (o), and 56504, and California Code of Regulations, title 5, section 3024). SB 117, however, is silent with regard to the waiver of the timelines in those statutes which generally govern records requests and the transfer of records for all students, regardless of whether the student is a special education student or a general education student (Education Code sections 49068 and 49069.7, and California Code of Regulations, title 5, section 438).

Because of what appears to be a Legislative oversight, some parents might assert that LEAs must respond to student records requests (within five business days), including the transfer of records to a student’s new school district (within ten schooldays), according to normal timelines. It does not appear, however, that this was Legislature’s intent, as failing to waive the overarching general student records request response timelines which apply to all students would negate the waiver of the timelines that specifically apply to special education students. As a result, LEAs should assume that the rules applicable to records requests under SB 117 apply to all student records requests, resulting in the waiver of timelines until COVID-19 school closures end. Still, LEAs should still respond to parent requests during this time period “as expeditiously as possible.” With this in mind, if an LEA knows that, due to COVID-19 school closures, it is unable to comply with a request for records within the normal five business day timeline or the timeline to transfer records to a student’s new school, the LEA is best served to provide notice of this in writing to parents who request records during this time period.

Finally, as noted above, FERPA and the IDEA require LEAs to respond to a request for records within 45 calendar days. At this time, no provisions of FERPA or IDEA have been waived in relation to school closures, and LEAs may still need to comply with these 45 calendar day timelines to provide student records in response to a parent request.

16. Q: Once school resumes, if it appears that a student with exceptional needs has lost skills, what is the LEA required to do?

A: Depending on a student’s particular needs and the distance learning options available to the LEA, LEAs may also need to develop plans to provide additional services to some students with disabilities when onsite instruction and regular school operations resume. Once school resumes, the student’s IEP team (or appropriate personnel under Section 504) must make an individualized determination as to whether, and to what extent, it may be necessary to provide compensatory education. (34 C.F.R §§ 300.320-300.324, and 34 C.F.R §§ 104.33-104.35). Compensatory services may be necessary if there is a decline in the student’s skills that occurred as a result of the student not receiving services during an extended closure, and such skills are not regained within a reasonable time.

17. Q: Will CDE’s compliance monitoring and investigation timelines be affected by a school closure?

A: Yes. The CDE Special Education Guidance states that unless and until the U.S. Department of Education ultimately provides flexibilities under federal law, LEAs should do their best to adhere to IDEA federally mandated timelines to the maximum extent possible. LEAs are encouraged to consider ways to use distance technology to meet these obligations. However, the CDE has clarified that for purposes of its compliance monitoring, it will not count days of school closure due to COVID-19 when looking at when annual and triennial IEPs are due. Additionally, while CDE will continue to receive complaints that allege violations of IDEA, CDE’s compliance investigation timelines will be extended for the period of time of a school closure to allow LEAs to meaningfully respond to complaint investigations. It is anticipated that once LEAs reopen and are available to participate in the investigation process, the 60-day timeline will recommence and both the complainant and LEA will be notified.In our continued effort to equip public agencies with useful insights, we have compiled a suite of links to several resource and guidance documents and webpages available from the federal and state governments regarding COVID-19. You can access the suite here: http://www.lozanosmith.com/covid19.php.

If you have any questions about AB 806 or postsecondary educational student support, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Marcy Gutierrez

Partner

Alyssa R. Bivins

Associate

Kelly Broedlow Dunagan

Associate

Erin Frazor

Associate

Tilman A. Heyer

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Student Attendance Issues in Response to COVID-19

March 2020
Number 15

The coronavirus disease 2019 (COVID-19) is a novel respiratory disease that has affected communities worldwide. Cases of COVID-19 have recently appeared in several California communities, prompting a significant number of school closures around the state. In the coming weeks, as schools begin to re-open, they may encounter issues regarding student attendance and exclusions. This news brief provides K-12 districts with general guidance relating to these issues.

Excluding Students from School

Whenever there is good reason to believe that a student has contracted COVID-19, they must be sent home and may not be permitted to return to school until school authorities are satisfied that the disease no longer exists. Further, any students who have been subject to strict isolation or a quarantine by a health officer may not attend school unless they have received written permission from a health officer to do so. A principal or his or her designee may also exclude students from school if the principal or designee believes that the student’s presence constitutes a clear and present danger to the life, safety, or health of other pupils or school personnel.

When a student is excluded from school for any of the above reasons, a district need not issue prior notice of the exclusion to the student’s parent or guardian, however, the district must send notice of the exclusion as soon as is reasonably possible after the exclusion.

Student Absences

A student absence must be excused when the student is absent for any of the following reasons: 1) the student is ill; 2) the student cannot attend school due to a quarantine implemented by a county or city health officer; or 3) the student is receiving medical services. Additionally, the law has recently been amended to allow school administrators to excuse absences that they deem to be valid in light of a student’s individual circumstances.

This means that students who are absent from school because they have contracted COVID-19 and/or are receiving treatment for COVID-19 must be excused. Also, students who cannot attend school due to a quarantine implemented in response to COVID-19 must be excused. Students who have not contracted COVID-19, are not receiving treatment for COVID-19, and are not quarantined, but who nevertheless decline to come to school due to concerns about the spread of disease, need not be excused, though, school administrators have discretion to excuse these absences if they deem the absences to be valid. Special situations may exist for students with compromised immune systems.

Takeaways

When school districts reopen, they will likely face a number of issues regarding student absences and exclusions. If school districts believe that students have contracted COVID-19, they must exclude these students from school. Further, absences must be excused for students who have contracted COVID-19, are being treated for COVID-19, or have been quarantined. If parents elect to keep their children home from school as a precautionary measure, these absences need not be excused, but may be excused pursuant to the discretion of school administrators. Districts are advised to consult with legal counsel if they have questions about their discretion to excuse absences.

School districts should keep apprised of guidance issued by CDPH and the California Department of Education regarding proper methods for responding to COVID-19. CDPH guidance can be found here: https://www.cdph.ca.gov/Programs/OPA/Pages/New-Release-2020.aspx.

For more information on issues arising from the COVID-19 outbreak, please contact one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Thomas R. Manniello

Partner

Benjamin Brown

Associate

©2020 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.