Coronavirus K-12 Education

Coronavirus (COVID-19) Education/Special Education K-12

This page update: February 1, 2020

On December 3, 2020, Governor Gavin Newsom announced a Regional Stay-At-Home Order. Under this Order, schools that have previously reopened for in-person instruction can  stay open. Schools may continue to bring students back for in-person instruction through an elementary education waiver or in cohorts. All in-person instruction or school opening must be consistent with state guidance. This Order does not change the most recent Special Education guidance from the California Department of Education (“CDE”), discussed below.

New California Laws on Distance Learning for Students with Disabilities

On June 29, 2020, the California State Legislature enacted SB (Senate Bill) 98, which included three new requirements relating to special education in California.

Individualized Education Program (IEP), Education Code Section 56345(a)(9)(A)

In California, IEPs must now include a description of the way the IEP will be provided during emergency conditions, when instruction or services cannot be provided to the student either at school or in-person for more than 10 school days. The new description must be added to all initial IEPs, and to all continuing IEPs at their regularly scheduled IEP meetings if they do not have the required description already. The description should also take into account any public health orders.

This new provision on IEPs during emergency conditions must, at a minimum, describe the following items for each student:

  1. Special education and related services
  2. Supplementary aids and services
  3. Transition services
  4. Extended school year services

Distance Learning, Meaning and Relation to IEPs, Education Code Sections 43500 and 43503

Distance learning now has a legal definition. It is instruction when the student and instructor are in different locations, with students under the general supervision of a certificated employee of a responsible educational agency.

“In-person instruction” also now has a legal definition. It is instruction under the immediate physical supervision and control of a certificated employee of the local educational agency while engaged in educational activities required of the pupil.

Distance learning must at least have the following components:

  1. Interaction, instruction, and check-ins between teachers and students through the use of a computer or communications technology;
  2. Video or audio instruction in which the primary mode of communication between the student and certificated employee is online interaction, instructional television, video, telecourses, or other instruction that relies on computer or communications technology; and
  3. The use of print materials incorporating assignments that are the subject of written or oral feedback.

In relation to students with disabilities, distance learning must include provision of special education, related services, and any other services required by an IEP, including the description for emergency conditions explained above.

Learning Continuity and Attendance Plan (LCAP), Education Code Section 43509

By September 30, 2020, every school district or responsible educational agency must have in place a learning continuity and attendance plan (LCAP) for the 2020-21 school year. The California Department of Education (CDE) has develop a template LCAP. The LCAP must specifically state what additional supports will be provided for students with disabilities served across the full continuum of placements during the period in which distance learning is provided.

The LCAP must also address learning loss that results from COVID-19 during the 2019–20 and 2020–21 school years. To this end, the LCAP must explain:

  1. How the educational agency will measure learning status, particularly in the areas of English language arts, English language development, and mathematics;
  2. What actions and strategies the agency will use to address learning loss and accelerate learning progress, as needed, and how these strategies differ for the following students:
    • students with disabilities,
    • students in foster care,
    • homeless students,
    • English learners,
    • Students eligible for a free or reduced-price meal,
    • Foster youth; and
  3. How the effectiveness of the services or supports provided to address learning loss will be measured, actions and strategies the agency will use to address learning loss and accelerate learning progress, as needed, and how these strategies differ for students with disabilities.

U.S. Department of Education Guidance

On March 12, 2020, the U.S. Department of Education stated that if a school district continues to provide educational opportunities to the general student population during school closure, it must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE. The student’s IEP or 504 team may be required to make an individualized determination as to whether compensatory services are needed under applicable standards and requirements.

On March 20, 2020, the U.S. Department of Education issued supplemental guidance warning schools against refusing to offer any distance learning to avoid its responsibilities under special education law. Students with disabilities are still entitled to a FAPE, but for health and safety reasons their IEPs might not be implemented the way they would be if school was in session. The school may choose to use services provided online including videos with accurate captioning or embedded sign language interpreting, accessible reading materials, and speech or language services through video conferencing. Where there are delays in services, the IEP or 504 team must make an individualized determination whether and to what extent compensatory services may be needed when schools resume normal operations.

On April 27, 2020, the U.S. Department of Education declined to recommend that Congress waive the FAPE requirements of Part B of the IDEA, which covers students with disabilities age 3-21. It concluded that “individualized education must take place for all students, including students with disabilities.” It further “determined there is no reason that a student's access to FAPE cannot continue online, through distance education or other alternative strategies.

On June 22, 2020, the U.S. Department of Education issued two guidance documents on the IDEA dispute resolution procedures. The first document covers complaints for students with IEPs aged 3-21 (due process complaints and state compliance complaints), while the second guidance document covers students aged 0-3. Both documents discuss when compliant timelines may be changed due to COVID-19.

On June 30, 2020, the U.S. Department of Education issued a Q&A document regarding IDEA procedural safeguards in the COVID-19 environment. This publication provides information about procedural safeguards including consenting to and signing an IEP, prior written notice (“PWN”), and access to educational records. The U.S. DoE provided more information in another Q&A document on September 28, 2020.

The U.S. Department of Education also issued a Q&A document containing information about IDEA Part C, the program for infants and toddlers with disabilities. That document can be accessed here.

California Department of Education Guidance

All of the CDE’s Coronavirus Response and School Reopening Guidance can be found on its website here.

On April 9, 2020, the California Department of Education released guidance answering questions regarding services for students with disabilities during school closures. SB 98, the law discussed at the top of the page, has superseded much of this information. Please refer to SB 98 before this document if you have questions about your child’s IEP rights during COVID-19 before reviewing this document.

On June 8, 2020, the CDE released school re-opening guidance titled Stronger Together: A Guidebook for the Safe Reopening of California's Public Schools. The guidance provides recommendations on many topics regarding school re-openings, including special education.

On September 30, 2020, the California Department of Education released additional guidance for California school districts and responsible educational agencies. This guidance provides information about providing in-person specialized supports and services to students with disabilities, as well as additional information regarding distance learning. CDE states that school districts or responsible educational agencies are permitted to provide in-person supports and services to small groups of students with disabilities.

As noted above, this guidance affirms SB 98’s requirement that a school district or responsible educational agency must include in a student’s IEP a description of how the IEP will be implemented under emergency conditions, when a student cannot receive in-person education for more than 10 school days. This plan should be a part of the student’s IEP and requires parental or student consent.

Importantly, CDE’s guidance states that school districts must continue to conduct special education assessments while providing distance learning, and special education assessments, including in-person assessments, can be conducted at this time.

California Department of Public Health Guidance

On August 3, 2020, the California Department of Public Health issued a revised report titled COVID-19 Industry Guidance: Schools and School-Based Programs. The report has guidelines to help school and community leaders plan and prepare to resume in-person instruction.