Bid Thresholds Raised For 2019

January 2019
Number 4

According to the California Department of Education Office of Financial Accountability and Information Services, pursuant to Public Contract Code section 20111(a), the bid threshold for K-12 school districts’ purchases of equipment, materials, supplies and services (except construction services) has been adjusted to $92,600, effective January 1, 2019. The notice may be viewed here.

The California Community Colleges Chancellor’s Office is expected to announce a similar adjustment to the bid threshold for community college districts’ purchases of equipment, materials, supplies and services (except construction services), pursuant to Public Contracts Code section 20651(a), sometime in the next few days. Once released, that information will be available here.

The bid limit for construction projects remains at $15,000.

The bid thresholds for cities, counties and special districts are not affected by the bid limits discussed above.

On a related note, the Legislature increased the bid limits under the California Uniform Public Construction Cost Accounting Act (CUPCCAA), effective January 1, 2019. (See 2018 Client News Brief No. 47) The increase in the bid limits affects school districts, cities, counties and all other public entities that have adopted CUPCCAA.

For more information on the new bid limits or bidding in general, please contact the author of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Ruth E. Mendyk

Partner

©2017 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.

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New Law Entitles Students To Wear Tribal Regalia Or Recognized Objects Of Religious, Ceremonial Or Cultural Significance As An Adornment At School Graduation Ceremonies

January 2019
Number 1

Effective January 1 2019, a new law in California establishes students’ right to wear tribal regalia or recognized objects of religious or cultural significance as an adornment at school graduation ceremonies.

Background

Generally speaking, federal and state law permits school districts, county offices of education and charter schools (local educational agencies, or LEAs) to develop and enforce reasonable dress code policies. Existing law has been understood to permit LEAs the discretion to adopt “no adornment” policies at graduation ceremonies, as a way to maintain traditional graduation decorum. Under a “no adornment” graduation attire policy, LEAs could prohibit students from adorning the required cap and gown attire for commencement ceremonies with other attire or garb beyond that approved for the ceremony (such as approved sashes signifying certain school-related accolades). The primary legal basis for LEA control in this area is that the required graduation attire for commencement ceremonies is not a matter of student expression, but rather “school speech.”

Assembly Bill (AB) 1248, however, adds section 35183.1 to the Education Code, and changes the rules when it comes to graduation ceremony dress codes. AB 1248 aims to ensure that students are permitted to adorn the required graduation cap and gown so that they may express themselves through their recognized cultural traditions, while simultaneously celebrating their educational achievements. For example, AB 1248 makes clear that Native American students are now permitted to wear an eagle feather at graduation ceremonies, as an expression of their cultural and spiritual beliefs.

While students will now have the right to wear “religious, ceremonial, or cultural” adornments at their school graduation ceremony, LEAs still retain the authority to prohibit an item that is likely to cause a substantial disruption of, or interference with, the graduation ceremony. This continuing LEA authority should give LEA officials the flexibility to impose size and other limits on student adornments, so that such adornments do not cause disruption of the ceremony. Additionally, it is important to note that the new law defines “adornment” as “something attached to, or worn with, but not replacing, the cap and gown customarily worn at school graduation ceremonies,” and defines “cultural” as “recognized practices and traditions of a certain group of people.” The definition of “cultural” appears to signal that the new law is not intended to permit students to merely adorn they graduation cap and gown with any expression of their choosing. Yet, ambiguity in the law in this respect will require LEAs to be thoughtful on how they align their policies and practices in this area, and risks school officials needing to act as arbiter of what student adornment satisfies the definition of “cultural” and what does not.

Takeaways

LEAs should review their policies and practices related to graduation and in particular the required dress codes. Among other options for LEAs to consider is to require students to obtain advance approval from school officials before being permitted to wear adornments at graduation ceremonies. By implementing such a policy, schools can make advanced determinations as to whether a student’s adornment request is likely to cause a substantial disruption, or interference with, the graduation ceremony.

If you have any questions about AB 1248 or about student issues generally, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Sloan R. Simmons

Partner

Kristy J. Boyes

Associate

©2017 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.

Changes To Skilled And Trained Workforce Requirements For Public Works Projects

January 2019
Number 2

Recent legislation modifies the skilled and trained workforce requirement for certain public works projects, shifting much of the burden for compliance to subcontractors. The new law also authorizes the California Labor Commissioner to investigate suspected violations of the statute and impose civil penalties in specified circumstances.

Background

In recent years, contractors have been required to utilize a “skilled and trained workforce” for “design-build” and “lease-leaseback” public works projects (see 2015 Client News Brief No. 8;2015 Client News Brief No. 71; and 2016 Client News Brief No. 63.) These requirements do not apply to publicly bid projects. Also, the skilled and trained workforce requirements may not apply if the public entity has entered into a project labor agreement covering the project.

These skilled and trained workforce requirements include two elements. First, all of the workers performing work in designated apprenticeable occupations must have “at least as many hours of on-the-job experience as would be required to graduate from an apprenticeship program…;.” Second, a minimum percentage of that workforce must be graduates of an apprenticeable program for the applicable occupation. This minimum threshold was originally set at 30% but is set to increase to 60% by 2020 for some trades. Other trades, including bricklayers, carpenters, drywall installers, plasterers, roofers, and stone masons, will remain at 30%.

Under current law, a contractor is required to provide monthly reports to the project owner that demonstrate compliance with these skilled and trained workforce requirements. In the event the contractor fails to provide the report or the report does not demonstrate compliance with the percentage requirements, the project owner must withhold all further payments until the contractor provides a plan to achieve substantial compliance. As a result, noncompliance by one subcontractor, for even a small portion of work, has had the potential to hold up payment to the contractor for all of the work on the project.

Assembly Bill 3018

Effective January 1, 2019, Assembly Bill (AB) 3018 amends Public Contract Code sections 2601 and 2602, and adds new section 2603, shifting some of the responsibility for skilled and trained workforce compliance to subcontractors. If the general contractor fails to comply with the monthly report requirements as a result of one noncompliant subcontractor, the project owner is required withhold 150% of the value of the monthly billing for that subcontractor only, until that subcontractor demonstrates a plan to achieve substantial compliance, or until the subcontractor is substituted out in accordance with applicable law. The contractor is permitted (but not required) to withhold payment from the subcontractor. However, now the project owner will be permitted to pay the contractor for the other work on the project performed by the contractor or by other subcontractors.

AB 3018 also gives the Labor Commissioner authority to investigate suspected violations of the skilled and trained workforce requirements and impose a separate civil penalty up to $5,000 per month on non-compliant contractors. In situations where the Labor Commissioner finds that violations of the skilled and trained workforce requirements are willful, the contractor or subcontractor may be temporarily disqualified from bidding on public works projects.

Takeaways

These changes to the skilled and trained workforce requirements shift the consequence of noncompliance to the responsible party. As a result, AB 3018 may make design-build and lease-leaseback projects more attractive for prospective general contractors. However, the increased burden on subcontractors to demonstrate compliance and the Labor Commissioner’s oversight may deter subcontractors from participating in such projects. Public entities in regions of the state where there are a limited number of graduates from apprenticeship programs should carefully consider these changes before proceeding with a delivery method subject to skilled and trained workforce requirements.

If you have any questions about the skilled and trained workforce requirements, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Claudia P. Weaver

Partner

Shawn A. VanWagenen

Senior Counsel

©2017 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.

New Laws Grant Diplomas To Terminally Ill And Students That Have Departed California

January 2019
Number 3

Governor Jerry Brown recently signed a pair of laws related to granting honorary or retroactive high school diplomas for particular groups of students. Assembly Bill (AB) 2109 authorizes the granting of honorary diplomas to students who are terminally ill and, AB 3022 authorizes the retroactive granting of high school diplomas to students who have departed California against their will.

AB 2109: Diplomas for Terminally Ill Students

Existing law allows the granting of honorary high school diplomas to foreign exchange students who have not completed the course of study ordinarily required.

AB 2109 extends this law to allow honorary diplomas to be granted to students who are terminally ill. A diploma granted under these circumstances must be clearly distinguishable from the regular diploma awarded upon graduation.

AB 3022: Diplomas for Students Forced to Depart California

Existing law authorizes the retroactive granting of high school diplomas to individuals whose education was interrupted due to internment during World War II, and to veterans of World War II, the Korean War, or the Vietnam War, when certain conditions are met.

AB 3022 authorizes retroactive granting of high school diplomas to individuals who have been forced to depart California against their will. Circumstances under which an eligible student may have departed California include being transferred to another state while in custody of a government agency, being ordered to voluntarily depart or be removed by a government agency, including pursuant to federal immigration law, or additional circumstances determined by a school district to be consistent with the purpose of the law.

To meet the criteria, a student must have been enrolled in grade 12 at the time his or her education was interrupted, must have not received a diploma due to that interruption, and must have been in good academic standing at the time of departure. In making the determination regarding academic standing, educational agencies must consider any coursework that may have been completed outside of the United States or through online or virtual courses.

Takeaways

These new laws allow educational agencies to recognize a student’s hard work and achievements under specific circumstances where they would ordinarily not be acknowledged. Educational agencies may choose to enact policies or procedures for identifying current or former students who may be eligible for honorary or retroactive diplomas under the new laws.

If you have any questions about these new laws, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Sarah L. Garcia

Partner

©2017 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.

New Law Limits the Use of Seclusion and Restraints in Schools, Requires Annual Data Report

December 2018
Number 90

The California Legislature recently passed a new law aiming to promote student rights and safety by imposing limits on the use of behavioral restraints and seclusion in schools. Assembly Bill (AB) 2657, which prohibits the use of restraint or seclusion for any student except in specified circumstances, becomes effective on January 1, 2019.

Current Law

Existing law limits the use of seclusion and restraints in schools for students with exceptional needs. Specifically, California school districts and nonpublic schools or agencies serving individuals with exceptional needs are prohibited from authorizing, ordering, consenting to, or paying for certain types of behavior interventions, including electric shock, the release of toxic or noxious sprays or mists, mechanical restraints, except when mechanical restraints are used by trained personnel as a limited emergency intervention, or locked seclusion, except when seclusion is used as specified. Additionally, California law authorizes the use of emergency interventions for students with exceptional needs in limited circumstances. (See 2013 Client News Brief No. 39.)

California law also prohibits persons employed by or engaged in a public school from inflicting, or causing to be inflicted, corporal punishment upon a student. However, there are currently no other limitations on the use of seclusion or restraints for general education students.

New Law

AB 2657 establishes a student’s right “to be free from the use of seclusion and behavioral restraints of any form imposed as a means of coercion, discipline, convenience, or retaliation by staff.” The legislation limits the use of seclusion and behavioral restraints, which include both mechanical and physical restraints, for all students and establishes parameters for situations in which behavioral restraints or seclusion may be used. Specifically, school districts and nonpublic schools or agencies may use a behavioral restraint or seclusion “only to control behavior that poses a clear and present danger of serious physical harm to the pupil or others that cannot be immediately prevented by a response that is less
restrictive.”

The legislation also provides statutory definitions for behavioral restraint, mechanical restraint, physical restraint, and seclusion for the first time in the Education Code, adopted from the Office for Civil Rights’ guidance on the use of restraint and seclusion. Notably it states vehicle safety restraints when used as intended during the transport of a student in a moving vehicle are not mechanical restraints, and physical escorts are not physical restraints.

School districts and nonpublic schools or agencies are prohibited from using a behavioral restraint for longer than is necessary to contain the behavior that poses a clear and present danger of serious physical harm. The legislation clarifies what types of interventions are not allowed, and emphasizes the need to avoid restraints and seclusion whenever possible. Specifically, it bans the use of locked seclusion unless the facility is otherwise licensed or permitted to use a locked room, physical restraint techniques that obstruct the student’s respiratory airway or impairs the student’s breathing or respiratory capacity, behavioral restraints that restrict breathing, and placing a student in a facedown position with the
student’s hands held or restrained behind the student’s back. A student placed in seclusion must be under constant, direct observation at all times.

AB 2657 also requires school districts and nonpublic schools or agencies to collect and report data on the use of restraints and seclusion to the California Department of Education (CDE) annually, no later than three months after the end of the school year. The report must include the number of students subjected to mechanical restraint and the number of times it was used, the number of students subjected to physical restraint and the number of times it was used, and the number of students subjected to seclusion and the number of times it was used. The information must be disaggregated by race or ethnicity, and gender, with separate counts for students with an individualized education program (IEP), students with a
504 plan, and students without an IEP or 504 plan. The legislation requires CDE to annually post the data from the report on its website within three months after the report is due to CDE.

Takeaways

School districts should note the new limitations on the use of restraints and seclusion for all students, effective January 1, 2019. This legislation does not repeal or replace existing laws that provide parameters and procedures for the use of seclusion and restraint for students with exceptional needs. School districts should consider updating their policies and procedures relating to pupil discipline, in light of the new rules for general education students, while continuing compliance with existing law related to seclusion or restraint that applies only to students with exceptional needs.

If you have any questions about AB 2657 or restraint and seclusion laws applicable to California school districts, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Marcy Gutierrez

Partner

Amanda E. Ruiz

Senior Counsel

Amanda J. Cordova

Associate

©2017 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.

Two New Laws Require Educational Agency Actions to Enhance Student Access to Health Services

December 2018
Number 92

Governor Jerry Brown recently signed two Assembly Bills (AB) into law, designed to increase student access to health services. Both laws focus on mental health services for students.

AB 2022: Bi-Annual Notice Requirement Regarding Access to Student Mental Health Services

AB 2022 adds Education Code section 49428 and requires public schools, including charter schools, to provide students and their parents or guardians at least twice per school year with information regarding how to access student mental health services on campus and/or in the community. This new notice requirement must be implemented beginning in the 2019-2020 school year.

Schools must notify parents or guardians by including the information in at least two of the following formats:

  • Electronic or hardcopy letter;
  • Parent handbook distributed at the beginning of the school year; or
  • School’s website or social media page.

Schools must notify students by including the information in at least two of the following formats:

  • An electronic or hardcopy document or school publication;
  • Pupil orientation materials at the beginning of the school year, or a pupil handbook; or
  • The school website or social media page.

Counties may use funds from the Mental Health Services Act to provide grants to school districts, charter schools or county offices of education. In order to access such funds, school districts, charter schools and county offices of education should apply for grants from their respective counties.

AB 2315: CDE Guidelines for Providing Telehealth Technology in Public Schools

AB 2315 adds Education Code section 49429 and requires the California Department of Education (CDE) to develop guidelines for the use of telehealth technology in public schools, including charter schools, for the provision of mental health and behavioral health services to students oncampus. Telehealth is the provision of health care services from a distance using information and communication technologies. Examples of telehealth may include video conferencing, phone and email communications, remote monitoring, and online patient portals. The CDE guidelines must be posted on the CDE’s website by July 1, 2020, as long as sufficient funds are made available for this purpose. The guidelines must cover a number of topics including, but not limited to, the following:

  • Qualifications of individuals authorized to assist students in accessing mental health and behavioral health services via telehealth technology;
  • Qualifications of individuals authorized to provide mental health and behavioral health services to students via telehealth technology;
  • Potential sources of funding for schools to implement telehealth technology;
  • Legal requirements for parental consent to treatment of minors via telehealth technology; and
  • Measures necessary to protect pupil and medical data transmitted via telehealth technology.

Takeaways

Both of these new laws are aimed at enhancing student access to health services with a specific focus on mental health. Schools should prepare to provide the notices required under AB 2022 beginning in the 2019-2020 school year. Counties should be prepared to process funding requests and provide funding to schools for the notifications required under AB 2022. With respect to AB 2315, public schools should be on the lookout for CDE’s guidelines, which should be issued by July 1, 2020. These guidelines will provide schools with a roadmap to use technology for mental and behavioral health services on campus.

If you have any questions regarding these new laws or any other student matter, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Marcy Gutierrez

Partner

Maryn Oyoung

Associate

©2017 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.

Pregnant and Parenting Pupils Afforded New Accommodations Beginning January 1, 2019

December 2018
Number 91

Beginning January 1, 2019, significant amendments to the Education Code provide pregnant and parenting pupils with new rights and accommodations designed to afford them the opportunity to succeed while protecting their health and the health of their children.

In 2015, over 24,000 children were born to individuals between the ages of 15 and 19 in California. Fewer than 4 in 10 young mothers graduate from high school by the age of 18, and 70 percent of young parents nationwide are “pushed out of school.” Assembly Bill (AB) 2289 works to allay some of these obstacles.

AB 2289

First, AB 2289 adds the following guidance:

A local education agency may:

  • Require any pupil to obtain the certification of a physician or nurse practitioner that the pupil is physically and emotionally able to continue participation in the regular education program or activity.

A local education agency must:

  • Treat pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery therefrom in the same manner and under the same policies as any other temporary disabling condition.

A local education agency shall not:

  • Apply any rule concerning a pupil’s actual or potential parental, family, or marital status that treats pupils differently on the basis of sex.
  • Exclude or deny any pupil from any educational program or activity, including class or extracurricular activity, solely on the basis of the pupil’s pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom.
  • Require pregnant or parenting pupils to participate in pregnant minor programs or alternative education programs. Those pupils who voluntarily participate in alternative education programs shall be given educational programs, activities, and courses equal to those they would have been in if participating in the regular education program.

Next, AB 2289 requires 1) notification to pregnant and parenting pupils of their rights and options through annual welcome packets and independent study packets; and 2) annual notification to parents and guardians of pupils at the beginning of the regular school term of the rights and options available to pregnant and parenting pupils.

Third, AB 2289 ensures specific accommodations to pregnant and parenting pupils:

  • Parental Leave
    • 8 weeks of allowed parental leave. Parental leave may be taken before childbirth if there is a medical necessity and after childbirth during the respective school year of birth. This is inclusive of any mandatory summer instruction. While pupils or those holding a pupil’s educational rights should notify the school if electing to exercise this right, failure to do so does not waive it.
    • More than 8 weeks of parental leave if deemed medically necessary by the pupil’s physician.
    • Excused absences from the pupil’s regular school program during the period of parental leave.
    • No requirement to complete academic work or other school requirements during the period of parental leave.

  • Return from Parental Leave
    • A pupil may resume the course of study at the school in which he or she was enrolled before taking parental leave.
    • A pupil is entitled to opportunities to make up work missed during his or her leave and reenrollment in courses.
    • A pupil may opt for a fifth year of high school instruction if necessary to complete state and local graduation requirements.
    • A pupil may elect to attend an alternative education option in lieu of returning to the school in which he or she was enrolled prior to parental leave. Such program shall provide educational programs, activities, and courses equal to those of the pupil’s regular education program.


The new law provides that the use of the above listed accommodations shall not result in academic penalty to any pregnant or parenting pupil. Complaints of noncompliance are to be processed under the Uniform Complaint Procedures (UCP).

AB 2289 also amends the definition of excused absences. Effective January 1, 2019, absences to care for a pupil’s sick child without proof of a doctor’s note must be excused.

Takeaways

School districts and other educational entities should amend their board policies and administrative regulations to account for the new requirements, including updating procedures regarding excused absences. Districts should also Amend notices to pupils and parents to include the newly required notifications, including notification of rights and options of pregnant or parenting pupils, and notices regarding additional grounds for filing complaints under the UCP. Finally, districts should consider any necessary training for staff regarding these changes.

If you have any questions regarding AB 2289 or about student rights generally, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Sarah L. Garcia

Partner

Michelle N. Sliwa

Associate

©2017 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.