CA Senate Bill 98, Public Health Orders and Impact on Special Education

The 2020/2021 school year is about to begin and we’re writing to make you aware of several changes to California law that will impact your child’s educational program in the coming school year.

On June 29, 2020, Governor Newsom signed Senate Bill 98 (“SB 98”) into law. With the new law, important changes were made to distance learning/hybrid learning standards and special education.

For the 2020/2021 school year, although many California families were looking forward to getting their children back to in-person learning for at least a portion of the school day, on July 17, 2020, Governor Newsom announced that he is closing California schools (both public and private) in counties with the highest rates of COVID-19. Schools in several of the most populated counties must remain closed for in-person attendance until they have been off the state's Monitor List for 14-consecutive days. Currently, fifty-five (55%) of California counties are on the state's Monitor List and an estimated eighty percent (80%) of California's population currently reside within those counties.

The Impact of SB 98 on Special Education:

Under SB 98, IEPs must now include, “a description of the means by which the individualized education program will be provided under emergency conditions, as described in Section 46392, in which instruction or services, or both, cannot be provided to the pupil either at the school or in person for more than 10 school days…"

Specifically, an IEP must now include how the following will be delivered in a distance learning context:

• Special education and related services
• Supplementary aids and services
• Transition services
• Extended school year services

The Impact of SB 98 on Distance Learning/Hybrid Learning Models For All Students:

Distance Learning must now include:

• Daily live interaction with certified employees and peers for purposes of instruction, progress monitoring, and maintaining school connectedness. This interaction may take the form of internet or telephonic communication, or by other means permissible under public health orders.
• If daily live interaction is not feasible as part of regular instruction, the governing board or body of the local education agency shall develop, with parent and stakeholder input, an alternative plan for frequent live interaction that provides a comparable level of service and school connectedness.
• Local education agencies must provide a comparable level of services and school connectedness even when daily live interaction is not feasible.

Following Governor Newsom’s announcement, the California Department of Public Health (“CDPH”) issued framework for re-opening K-12 school.

Waivers for Re-Opening In-Person:

Elementary schools may qualify for a waiver

• A superintendent (or the equivalent for charter and private schools) may request a waiver from the CDPH.
• Waivers will be considered by local health officers after reviewing the local community epidemiological data, considering other public health interventions, and consulting with the CDPH.

CDPH Guidance on School Closure:

• Individual school closures will be recommended based on the number of cases and/or the percentage of teacher/students/staff that are positive for COVID-19 reaches five percent (5%) within a 14-day period, depending on the size and physical layout of the school.
• A superintendent should close a school district if 25% or more of schools in a district have closed due to COVID-19 within 14 days, and in consultation with the local public health department.

CDPH Guidance on In-Person Re-Opening:

• Schools and school districts may reopen for in-person instruction at any time if they are located in a local health jurisdiction (LHJ) that has not been on the county monitoring list within the prior 14 days.
• If a school or school district reopens to in-person instruction, but the county is later placed on the county monitoring list, the schools should begin testing staff, or increase frequency of staff testing but are not required to close.

Below are our firm’s responses to Frequently Asked Questions:

Are all Distance Learning Programs the Same?

No, some are better than others. The quality of distance learning programs vary from school to school (public and private) but under SB 98 distance learning programs that public schools offer must now be robust, unlike what students were offered from March to June 2020.

In March 2020, public schools put together distance learning programs for enrichment only. These “enrichment programs” lacked academic rigor, attendance was optional, and ill-equipped parents and caregivers were forced to become educators overnight. As a result, many students have fallen significantly behind.

With SB 98 setting statewide academic standards for distance learning, we expect public schools to offer more robust programs than were offered in Spring 2020. That said, it’s still too soon to determine whether California public school distance learning programs will be appropriate for students with unique educational needs.

Many private schools and some public charters transitioned to virtual learning platforms with relative ease in March 2020 and continued providing strong, full-day academic programs to students.

For schools (public or private) that continued their full-time academic programs in a virtual setting during the second half of the 2019/2020 school year, those teachers will likely be better prepared to live up to the SB 98 distance learning standards than the schools that only offered enrichment.

What options are there if my school’s distance learning program is not appropriately addressing my child’s unique needs?

If your child is struggling, whether that environment be in-person, remote, or hybrid, make a written request for an IEP meeting and make sure that your concerns are well-documented. The public school must hold an IEP meeting within thirty (30) days of a parent’s written request (Cal. Ed. Code Section 56043(1) and 56343.5).

Can I get the public school to pay for a private distance learning/virtual program?

Yes, but you’ll need to give written notice at least 10 business days before you place your child privately or you can notify your public school at an IEP meeting. You must be prepared to show why the public school's program was not appropriate. (20 U.S. Code Section 1412(a)(10)(C)(iii)(bb); 34. CFR. Sec. 300.148.

The District still hasn’t completed my child’s triennial assessment or any other assessment I consented to before the COVID-19 school closures, does this mean my child won’t be assessed?

As we mentioned in our last guidance letter, public school obligations to comply with federal special education laws during March to June 2020 school closure still apply giving parents the right to pursue claims for the school district’s failure to complete assessments on time. For initial assessments, the school district has an obligation to identify, locate, and evaluate any child residing within their boundaries who is suspected of having a disability (34 C.F.R. Section 300.111(a)).

If a school district turns down a request for an assessment or fails to complete an assessment within sixty (60) days after the parent has consented to an assessment plan, parents can file a due process hearing request and asked that the school district be compelled to complete the assessment (Cal. Ed. Code Section 56043(c)).

The District didn’t fully implement my child’s IEP from March to June 2020, is my child entitled to compensatory education?

Under federal law, yes. Compensatory education are services provided or ordered by a judge to compensate a student for educational opportunities that were lost when the public school failed to provide the student with a FAPE under the IDEA. For those who used our Distance Learning Tracker to keep track of services provided, now is the time to make a request for compensatory education for the services that were not provided. For more information please contact us.