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.

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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.

New Law Limits School District Collection of Debts from Students and Penalties for Debts

December 2018
Number 85

The California Legislature recently passed Assembly Bill (AB) 1974, which places new prohibitions and restrictions on the collection of debt owed by parents to public schools, including state special schools and charter schools, and school districts, including county offices of education (all referred to herein as school districts). The new law prohibits the practice of punishing students for the failure of their parents to pay debt owed to the school district, adds additional requirements for the collection of student debt, prohibits the sale of such debt, and allows school districts to offer alternative, nonmonetary forms of payment to settle the debt. Importantly, the new law will not impact existing law regarding the imposition of charges for willfully damaged school property or failing to return loaned school property, or the consequences of not paying those charges.

Background

Parents are responsible for the fees and debts incurred by their minor child. School districts can no longer take negative actions against students for their parents’ failure to pay debt. While parents may still be held accountable for the failure to pay permissible student fees (such as fees for transportation to and from school), the student cannot. Schools districts are now barred from imposing the following consequences as a result of the unpaid debt:

  • Denying full credit for any assignments for a class;
  • Denying full and equal participation in classroom activity;
  • Denying access to on-campus educational facilities, including, but not limited to, the library;
  • Denying or withholding grades, transcripts, or a diploma;
  • Limiting/barring participation in an extracurricular activity, club, or sport; and
  • Limiting or excluding from participation in an educational activity, field trip, or school ceremony.

Significantly, the new restrictions do not apply to “debt owed as a result of vandalism or to cover the replacement cost of public school or school district books, supplies, or property loaned to a pupil that the pupil fails to return or that are willfully cut, defaced, or otherwise injured.” This exception relates directly to Education Code section 48904, which permits the imposition of charges under such circumstances, and so long as adequate due process is provided to the student, authorizes the withholding of grades, diploma, and transcripts of a student where the charge has not been paid. The above exception does not apply to a student who is a current or former homeless youth, or current or former foster youth. As such, school districts must ensure against imposition of consequences against these categories of students, even where the debt is imposed for school property which is not returned or willfully damaged.

AB 1974 imposes the following requirements when collecting the debt from parents owed to the school district:

  • Provide an itemized invoice for any amount owed by the parent or guardian before pursuing payment of the debt;
  • Provide a receipt to the parent or guardian or former student for each payment made to the school or district for any amount owed by the parent or guardian on behalf of the student or former student; and
  • The invoice must include references to school policies relating to debt collection and the rights established under Education Code sections 49014 and 49557.5.

In addition, the school district may offer the student or former student, with the permission of the parent or guardian, alternative, nonmonetary forms of compensation to settle the debt. This alternative must be voluntary and conform to all Labor Code provisions. Further, a school district is prohibited from selling the debt owed by a parent or guardian. Finally, the school district may still contract with a debt collection agency to collect the debt, but the debt collection agency cannot report the debt to a credit agency.

Takeaways

When AB 1974 goes into effect on January 1, 2019, public schools, including state special schools and charter schools, school districts, and county offices of education, will not be able to take negative actions against a student, or former student, for debts owed by the student’s parent or guardian-with the exception of debt imposed as a result of vandalism or for failure to return school property, which is itself limited relative to current or former homeless youth, or current or former foster youth. As school districts and county offices of education look forward to 2019, a review of existing debt-collection practices is recommended, which may lead to the need to modify, establish or eliminate existing policies
and practices to ensure compliance with this new law.

For more information about AB 1974 or about school fees 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 visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

New Bills Remove Obstacles to Graduation for Migrant and Immigrant Students

December 2018
Number 83

Assembly Bills (AB) 2121 and 2735 will make it easier for migrant students and English learners to access courses in core curriculum subjects and obtain course credit necessary for graduation. Both bills were signed by Governor Jerry Brown in September 2018. AB 2121 will become effective on January 1, 2019, while AB 2735 will take effect at the beginning of the 2019-2020 school year.

AB 2735

Existing law requires schools to ensure that students with limited English proficiency, or English learners (ELs), participate in the standard instructional program of a school. Schools may do this by either providing ELs with access to the standard instructional program along with English language support, or by placing ELs in separate educational programs intended to allow ELs to develop proficiency in English before being transferred to the standard instructional program. However, as cited by the author of AB 2735, several studies have found that many ELs who have been placed in separate programs become, in essence, trapped in the programs, unable to access courses in math, science, and English language arts,
despite their proficiency in English, until they are reclassified as non-ELs.

AB 2735 was enacted to solve this problem by prohibiting local education agencies, including county offices of education, public school districts, and charter schools, from denying ELs enrollment in core curriculum courses and courses required for high school graduation. This bill applies to ELs in middle and high school. The new law does not apply to students enrolled in “newcomer programs” designed to meet the academic and transitional needs of newly arrived immigrant pupils. AB 2735 creates new California Education Code section 60811.8.

AB 2121

Minimum course requirements for high school graduation are specified by state law and supplemented at the local level. However, Education Code sections 51225.1 and 51225.2 have historically provided a number of exemptions to local graduation requirements, including requiring the acceptance of partial credit, for certain students who move frequently, including foster youth, homeless children or youth, former juvenile court school students, and certain children of military families.

AB 2121 extends these exemptions to “migrant children,” defined to include children who have recently moved from one school district to another in order for the child or the child’s family to secure temporary or seasonal employment in an agricultural or fishing activity. AB 2121 will also extend benefits to children who are participants in a newcomer program.

Charter schools must comply with this statutory scheme, as well.

Takeaways

Both AB 2735 and AB 2121 were enacted to address the disparate rate of high school graduation and academic performance of English learner and immigrant populations, as compared to all other students in California. These new laws will allow these students to more easily access core curriculum course credits, while exempting them from certain local graduation requirements.

School Districts, charter schools, and county offices of education should review their courses, programs, and services offered to English learners to ensure that they do not prohibit English learners from accessing core curriculum subjects in violation of new Education Code section 60811.8. Likewise, public school districts and charter schools should be prepared to provide migrant students and students enrolled in newcomer programs with all of the necessary notifications and information regarding exemptions from local graduation requirements.

For more information on how school districts can prepare for the effects of 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:

Edward J. Sklar/a>

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.

Legislature Expands Sexual Health Education Resources

November 2018
Number 79

In September 2018, Governor Jerry Brown approved a series of bills that expand on the instruction of comprehensive sexual health education for California public school students.

The California Healthy Youth Act requires that school districts ensure that pupils in grades 7 through 12 receive comprehensive sexual health education, including human immunodeficiency virus (HIV) prevention education, and information on sexual harassment, sexual assault, sexual abuse, and human trafficking. Commencing with the 2019-2020 school year, charter schools will be included in these requirements. (See 2018 CNB No. 57.)

Assembly Bill (AB) 1861 adds the requirement that school districts and charter schools provide pupils in grades 7 through 12 information on how social media and mobile device applications are being used for human trafficking.

AB 1868 authorizes school districts and charter schools to provide optional instruction on the potential risks and consequences of creating and sharing sexually suggestive or sexually explicit materials through cellular telephones, social networking Internet sites, computer networks, or other digital media.

Lastly, Senate Bill (SB) 1104 requires school districts and charter schools to identify the most appropriate methods of informing parents and guardians of pupils in grades 6 through 12 of human trafficking prevention resources and implement the identified methods by January 1, 2020.

The California Department of Education provides information on its website regarding comprehensive sexual health and HIV/AIDS instruction, and is in the process of revising the Health Education Curriculum Framework to be adopted in the spring of 2019.

If you have any questions about these new laws or about sexual education laws 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 visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Roberta L. Rowe

Partner

Jayme A. Duque

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.

California Department of Education Issues Dyslexia Guidelines

September 2017
Number 50

The California Department of Education (CDE) has published new guidelines for serving students with dyslexia. The California Dyslexia Guidelines can be found here.

Assembly Bill (AB) 1369, which became effective on January 1, 2016, required the CDE to develop and disseminate the guidelines in time for use no later than the beginning of the 2017-2018 school year.

The guidelines are not mandatory, but they offer practical methods to identify and comprehensively assess students with dyslexia that are likely to assist local educational agencies (LEAs), including school districts and county offices of education, in complying with the “child find” mandate of the Individuals with Disabilities Education Act (IDEA) to identify, locate and evaluate all children with disabilities to ensure that they receive special education and related services if they qualify.

In addition to practical methods to identify students with dyslexia the guidelines also contain tools for comprehensive assessments and evidence-based interventions. Advice and tools offered in the guidelines include:

  • Universal screenings, beginning in kindergarten and continuing each year, increase the likelihood of early identification of and intervention for students with dyslexia. The guidelines’ extensive list of dyslexia characteristics, broken down by age group and grade level, will support classroom teachers in screening for students with dyslexia.
  • Assessments must cover essential reading, writing and spoken language areas, such as phonological awareness, encoding, reading comprehension and rapid naming. Speech and language pathologists and school psychologists can refer to the guidelines’ appendix of assessment tools and instruments to measure students’ phonological processing abilities when they assess for special education eligibility.
  • In addition to practical instruction on teaching methods, the guidelines suggest various accommodations and assistive technology that may help students with dyslexia fully participate in the classroom.
  • The guidelines also note that a student who has dyslexia does not necessarily need special education or related services and is not automatically eligible for services. However, the guidelines remind LEAs not to delay evaluating a student for special education eligibility if the LEA suspects or has reason to suspect that the student has dyslexia and needs special education as a result.

As the new academic year begins for schools across California, it is a good time to review the eligibility criteria for specific learning disability, with special attention paid to phonological processing and dyslexia. The
guidelines provide an opportunity for school districts to identify students who are struggling, provide interventions and ensure compliance with laws protecting students with disabilities.

If you have any questions about the California Dyslexia Guidelines or special education 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 visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Anahid Hoonanian

Senior Counsel

Vivian Chen

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.