Coronavirus K-12 Education

Coronavirus K-12 Education

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

This page update: August 31, 2021

There are several new state laws for the 2021-22 school year relating to COVID-19 that impact students with disabilities. The distance learning rules that applied last year (SB 98) expired at the end of June 2021. On this page, drc explains the new rules for Independent Study (AB 130) and Retention, Grade Changes, and High School Graduation Requirements (AB 104). On this page, drc provides information on recent federal guidance about special education. drc has also created resources on Face Masks, State Compliance Complaints, and other COVID-19 issues that you can access under the “Education/Special Education K-12” heading.

United States Department of Education states that school districts must identify, locate, and evaluate children with disabilities during the COVID-19 pandemic

On August 24, 2021, new federal guidance was issued. This guidance is from the Office of Special Education and Rehabilitative Services (OSERS). OSERS is a part of the United States Department of Education.

This guidance affirms that school districts still have “Child Find” obligations during the COVID-19 pandemic. “Child Find” means that school districts have an obligation to “identify, locate and evaluate” all children with disabilities, ages 3 through 22, who may be eligible for special education. School districts have this obligation under federal and state special education law.

This new guidance says:

  • School districts must identify, locate, and evaluate children who are suspected to have a disability. This includes students enrolled in public schools, public charter schools (including virtual public charter schools), private schools, or homeschool.
  • School districts must conduct an initial evaluation and hold an IEP meeting within 60 days of receiving the parent/guardian’s consent to assess.
  • General education interventions, like Multi-Tiered Systems of Supports, cannot be used to delay or deny an initial special education evaluation for a student suspected to have a disability.
  • School districts should review their Child Find activities. Virtual instruction limits or prevents a teacher’s interaction and contact with a child. As a result, some students may not be suspected to have a disability. School districts should make sure they are identifying, locating, and evaluating students suspected to have disabilities. This may mean that a school district may need to conduct additional screenings. They may need to share information about special education supports to the public.
  • COVID-19 may have disrupted a student’s education. The student may have received limited instruction. Limited instruction and little academic progress does not automatically mean that a student should be referred to special education.
  • Students with long COVID or suspected of having post-COVID conditions may be eligible for an Individualized Education Program. Their COVID condition must adversely impact the student’s academic and/or functional needs.

You can find this guidance through this weblink: https://sites.ed.gov/idea/files/rts-qa-child-find-part-b-08-24-2021.pdf

New California Law on Independent Studies and Distance Learning for All Students

Does my child’s school district have to offer independent study?

Yes. For the 2021-22 school year, school districts and county offices of education must offer independent studies to any student who needs to engage in remote learning, including students whose health would be at risk by returning to school in-person. To accommodate the continued need for distance learning, the state recently changed the law to expand independent studies. Any student remaining on distance learning for the 2021-22 school year will need to enroll in independent studies.

Charter schools, however, are not required to offer independent study.

What is Independent Study?

The purpose of independent study is to provide an alternative education program and setting for students. Independent study programs are voluntary and use alternative instructional strategies that respond to individual student needs and learning styles.

For more information on Independent Study, visit the California Department of Education’s (CDE) website at: https://www.cde.ca.gov/sp/eo/is/.

What does my school district’s Independent Studies Program look like?

School districts have flexibility in how they create Independent Study Programs. But all districts must give parents a notice explaining their Independent Study Program and the parents’ option to enroll their child in the program. The notice must include the right to request a pupil-parent-educator conference meeting before enrolling in Independent Study and your child’s rights regarding enrolling, disenrolling, and reenrolling in Independent Study.

The notice must also explain the amount of “synchronous instruction” a student will have access to as part of Independent Study. “Synchronous instruction” means remote classroom-style instruction with live two-way communication between the teacher and student.

Do I need to call an IEP meeting to place my child with disabilities on Independent Study?

Yes. Children with disabilities cannot participate in Independent Study unless it is written in their IEP. You can request an IEP meeting in writing to discuss this change, and the school district must hold the meeting within 30 days.

drc understands that there may be emergency situations where you cannot wait 30 days for an IEP meeting. If this is the case, write a letter to your district that explains why it is an emergency and offer to waive participation of certain IEP team members to make scheduling easier. In some situations, you and the school district can change an IEP without a meeting. This is sometimes called an “IEP amendment.”

Do I need a note from a doctor to prove it is not safe for my child to go to school in person?

No. The child’s parent or guardian decides whether going to school in person poses a health or safety risk.

My child has an IEP. Can the school district deny my request to place my child on Independent Study?

Yes. Under state and federal special education laws, your school district must offer your child a free and appropriate public education (FAPE). When you call an IEP meeting to request your child go on Independent Study, the IEP team may decide that your child’s needs cannot be met on Independent Study. In other words, that Independent Study does not provide your child with a FAPE.

drc has heard from many families whose children with IEPs have been denied Independent Study at IEP meetings. In many cases, the school district instead offered an in-person placement because it felt Independent Study did not offer the child a FAPE.

These stories are deeply concerning to drc. We understand that some students with IEPs cannot attend school in person because of the risk COVID-19 poses to their health and safety. Denying Independent Study to at-risk children with IEPs may leave these children with no practical options to attend school safely.

If your school district denies your request for Independent Study, it must provide you with a Prior Written Notice. The Prior Written Notice must explain why it is denying the request for Independent Study and describe the information it used to make the decision. The Prior Written Notice must also inform you of your right to challenge that decision in due process.

Can I challenge the IEP team’s decision Independent Study to my child with an IEP?

Yes.  If the IEP team denies your request to place your child with an IEP on Independent Study, you can request mediation and/or a due process hearing, or file a compliance complaint with the CDE. For more information on special education dispute resolution procedures, please review Chapter 6 of our Special Education Rights and Responsibilities (SERR) Manual: https://serr.disabilityrightsca.org/serr-manual/chapter-1-information-o….

If you have questions about your special education rights, please call DRC’s intake line at 1-800-776-5746 (TTY call 1-800-719-5798). DRC’s intake line is available Monday/Tuesday/Thursday/Friday from 9:00AM – 3:00PM.

My child has a 504 plan. Do I need to call a 504 meeting to place my child on Independent Study?

DRC recommends that you call a 504 team meeting before placing your child on Independent Studies. Children with 504 plans are entitled to a FAPE under Section 504 of the federal Rehabilitation Act. Because Independent Study is a change of placement, the 504 team may need to modify or add reasonable accommodations to the 504 plan that ensure the child receives a FAPE while on Independent Study.

My child cannot do Independent Studies or attend school in person. Is Home/Hospital Instruction still available?

Yes. Home/Hospital Instruction is still available for general education students, including students with 504 plans, with temporary disabilities who cannot attend school in person. Home/Hospital Instruction is a minimum of five hours per week. The CDE has a Home/Hospital Instruction guide here: https://www.cde.ca.gov/sp/eo/hh/.

Home/Hospital Instruction is different for students with IEPs. When a student with an IEP needs instruction at home or in a hospital to receive a FAPE, the IEP team must meet to change the child’s placement and determine the appropriate amount of special education and related services the child will receive in the home or hospital. The IEP team must also review a report from a medical professional that explains the need for instruction in the home or a hospital and projects a date for the child to return to school.

My child’s IEP Team offered Independent Study as a “Diagnostic Placement.” What does that mean?

drc has heard from families that some school districts are offering a temporary change in placement to Independent Studies. A temporary placement like this is sometimes called a “diagnostic placement.” Under a diagnostic placement, the IEP team tries a placement for a short amount of time (for example, 60 days) to gather information and decide whether that placement is appropriate for the child in the long-term.

In some situations, diagnostic placements can be a compromise when the parents and school district cannot agree on a long-term placement. But please note that under a diagnostic placement, your child does not have the right to “stay put” in the placement while you and the district resolve any disagreements.

My child has an IEP and started the year on Independent Study. Can we switch to in-person instruction in the middle of the year?

Yes. The law requires school districts to allow students to transition from Independent Study back to in-person instruction within 5 school days.

But because placement changes must go through the IEP team, it is not clear whether the 5-day timeline applies to students with IEPs. If you wish to take your child with an IEP off of Independent Study and return to in-person instruction, drc recommends that you request an IEP meeting in writing and document this change in the IEP. This may take longer than 5 days, but it will make sure you maintain all of your special education rights, including the right to receive a Prior Written Notice if the school district does not agree with your request.

How can I receive updates about Independent Study?

The CDE announced on July 15, 2021, that it will soon issue additional guidance and webinars about the new Independent Study requirements. To receive updates from the CDE via email, subscribe to the Independent Study listserv by sending a "blank" message to join-independent-study@mlist.cde.ca.gov.

Other Resources

To help parents and guardians, as well as students better understand the new Independent Studies model, the National Center for Youth Law (NCYL), Children Now, ACLU Foundations in California, and other education-focused organizations published a Know Your Rights Guide to Independent Studies for the 2021-22 school year, which you can find online here: https://www.myschoolmyrights.com/distance-learning/. A Spanish version of the website is located here: https://www.myschoolmyrights.com/aprendizaje-a-distancia/?lang=es.

Disability Rights Education & Defense Fund (DREDF) has published a guide on Independent Study titled “Know Your Rights: Students with Disabilities and Independent Study Programs” that you can assess here: https://mailchi.mp/dredf/know-your-rights.

Office for Civil Rights and Office for Special Education and Rehabilitative Services Issue Resource on Long COVID

On July 26, 2021, the Office for Civil Rights and Office for Special Education and Rehabilitative Services issued a resource. This resource is called “Long COVID under Section 504 and the IDEA: A Resource to Support Children, Students, Educators, Schools, Services Providers, and Families.”

Early studies show that children and students of all ages may experience long COVID. Long COVID means the child or student has contracted COVID and experiences post-COVID symptoms. This resource discusses how children and students with long COVID may be entitled to disability-related supports and services under federal laws.

This resource says:

  • Long COVID can be a disability under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act (Section 504).
  • Students with long COVID may be eligible for special education and related services under the Individuals with Disabilities Education Act. They may have the right to protections and services under Section 504.
  • Students who already have an IEP or Section 504 Plan and who contracted COVID-19 may experience new and/or worsened symptoms related to their pre-existing disability due to COVID-19. These students may be eligible for new or different instruction, services, or supports.

This resource also reviews school districts’ obligations. School districts must identify, locate, and evaluate students who may be eligible for an IEP or Section 504 Plan due to long COVID.

This resource also reviews colleges and universities’ obligations. They must provide equal educational opportunities to students with disabilities. Students whose long COVID substantially limits a major life activity may have a disability. These students may be entitled to academic adjustments or modifications.

You can find this resource by clicking on this link: https://www2.ed.gov/about/offices/list/ocr/docs/ocr-factsheet-504-20210…

New California Law on Retention, Grade Changes, and High School Graduation Requirements

On July 1, 2021, Governor Gavin Newsom signed a new bill into law. This law is called AB (Assembly Bill) 104.

AB 104 provides new options to address student learning loss due to COVID-19 school closures and distance learning. AB 104 makes three specific changes to the law. First, AB 104 establishes a new retention request process. Second, AB 104 allows grade changes for high school students. Last, AB 104 provides an exemption to the high school graduation requirement for specific juniors and seniors. Each change is explained below.

Retention Request Process

AB 104 requires schools to set up a retention request process. Retention means that a student will repeat their last grade. This process is only for the 2021-2022 school year.

If you would like your child to be retained, you must send a written retention request to the school. Your child must have received a D, F, a No Pass, or similar grade in at least half of their classes in the 2020-2021 school year. You cannot submit a retention request for a student who was in twelfth grade in the 2020-2021 school year.

Once you submit a retention request, the school must hold a meeting. This meeting is called a consultation. This meeting must be held within 30 days of your request. The meeting must include you, your child, an administrator, and a teacher. The team will talk about your retention request. The team must talk about:

  • learning recovery options (this includes specific interventions and supports and access to prior courses in which your child received a D or F letter grade in the 2020-2021 school year, credit recovery, or other support),
  • your child’s academic data,
  • any information on whether retention is in your child’s best interests, including academic and social interests,
  • the research on the effects of retention, and
  • the types of interventions and supports that have been shown to help students.

The school must make a decision on whether to retain your child within 10 days of this meeting. Any decision to retain must be consistent with your child’s Individualized Education Program.

If your child is retained, they will repeat the same grade that they were in last year (2020-2021 school year). The school must offer your child extra interventions and supports. If your child is not retained, the school can still offer your child specific interventions and supports. The school can also offer your child access to courses from the 2020-2021 school year that your child received a D or F in, credit recovery, or other supports.

Grade Changes For High School Students

AB 104 allows parents/guardians, educational rights holders, or a high school student to apply for a grade change. Grade changes can only be made for high school students. You can request to change a letter grade for a class taken in the 2020-2021 school year. Your request would change the letter grade to a Pass/No Pass grade.

The school must grant your request. Schools cannot limit the number or type of classes eligible for grade changes. Grade changes cannot negatively affect your child’s grade point average. Grade changes cannot impact a student’s eligibility for state/institutional financial aid. For admission, California State University must accept a transcript with a Pass/No Pass grade for any university applicant who was enrolled in a California high school from the 2020-2021 to 2023-2024 school years.

Schools must notify families of the grade change option. Schools must post a notice on their websites and provide families with written notice of this option. Once your school does this, you only have 15 days to submit your grade change application to the school. The school must change your child’s transcript. The school must notify you of the grade change within 15 days of receiving the grade change application.

Exemption to High School Graduation Requirement

Finally, AB 104 provides an exemption for juniors and seniors in the 2020-2021 school year who are not on track to graduate from high school in four years. These students only have to complete the statewide high school graduation requirements. These students do not have to complete the school’s separate high school graduation requirements. Schools must give these students the opportunity to complete statewide graduation requirements through a fifth year of high school, credit recovery, or another opportunity to complete required coursework.

You can find the text of AB 104 here: https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=2…

New California Law on Learning Recovery and School Reopening

Governor Newsom signed a new bill into law on March 5, 2021. This law is called AB (Assembly Bill) 861.

AB 86 has new requirements for learning recovery and school reopening. These new requirements encourage schools to provide in-person instruction to students (this includes hybrid models). These new requirements also aim to close the learning gap created by COVID-19 school closures. AB 86 prioritizes specific groups, including students with disabilities.

AB 86 gives about $6.6 billion to schools. This funding is broken into two parts: a learning recovery fund ($4.6 billion) and school reopening grants ($2 billion).

Learning Recovery Fund

The Learning Recovery Fund totals about $4.6 billion. Schools must develop a program to help with learning loss, known as a “Expanded Learning Opportunities Grant Plan,” to receive money. This program must provide extra instruction. This program must support students with disabilities. Schools must add instructional learning time for the 2020-2021, 2021-2022, and 2022-2023 school years. Schools can add instructional learning time in different ways. Schools can add more instructional days. Schools can add more minutes of instruction. Schools can provide summer school or programs during school breaks. Schools can also take any action that adds more instructional time or services based on students’ needs.

Schools must also close the learning gap created by COVID-19 school closures. Schools can offer:

  • tutoring (one-on-one or small group),
  • learning recovery programs and materials for academic or English language development,
  • teacher/staff training,
  • health, counseling, or mental health services,
  • school meals,
  • before and after school programs,
  • student trauma and social-emotional learning programs,
  • community learning hubs with technology, high-speed internet, and other academic supports,
  • academic services to track and test students’ progress, and
  • staff training to help students with their social-emotional and academic needs.

Schools can use at least 85% of the funds for in-person instruction (including hybrid models). At least 10% of these funds must be used to hire paraprofessionals. A paraprofessional includes paraeducators, teacher aides, and instructional aides2. Paraprofessionals can provide students with disabilities more instruction and support.

Schools can still offer students distance learning. But, schools must show that they are offering in-person instruction “to the greatest extent possible”. Schools can use up to 15% of the funding they receive for distance learning. Schools that provide distance learning must comply with distance learning requirements.

By June 1, 2021, the governing board of each school district must convene a public meeting and adopt an Expanded Learning Opportunities Grant Plan for using these funds. The California Department of Education has posted a template Expanded Learning Opportunities Grant Plan on its website3. Disability Rights California encourages those interested in providing feedback on how their school district should use the funds to write to their school board or participate in the public meeting.

School Reopening Grants

The School Reopening Grants total $2 billion. These grants can be used to help provide in-person instruction. For example, they can be used for COVID-19 testing, personal protective equipment, ventilation, and salaries for certificated or classified employees providing in-person instruction4.

Schools must reopen for in-person instruction by April 1, 2021. A school will lose money for each day after April 1, 2021 that the school does not provide in-person instruction. If a school does not provide in-person instruction by May 15, 2021, then the school will lose these funds. Once a school reopens for in-person instruction, it must stay open unless a state or local public health officer orders the school to close. If a school closes after reopening, it could lose funds.

Here’s more specific information about when schools can reopen under AB 86 using the State Department of Public Health’s Blueprint for a Safer Economy5:

Purple Tier

  • For schools in counties that are in the Purple Tier and that are not open or not eligible to open: these schools must offer optional cohort in-person instruction for students with disabilities if consistent with students’ IEPs “to its maximum practical capacity”.
  • For elementary schools that are in counties in the Purple Tier and that are open: these schools must offer in-person instruction to all students in Kindergarten through second grade. These schools must offer optional cohort in-person instruction for students with disabilities if consistent with students’ IEPs.

Red, Orange, and Yellow Tiers

  • For elementary schools: these schools must reopen to the highest elementary school grade (up to sixth grade). These schools must offer in-person instruction to all students in all grade levels. These schools must also offer optional cohort in-person instruction for students with disabilities if consistent with students’ IEPs.
  • For middle and high schools: these schools must offer in-person instruction in at least one full grade level. These schools must also offer optional cohort in-person instruction for students with disabilities if consistent with students’ IEPs.

Also, AB 86 requires:

  • Schools to make reports about school reopening two times per month to the California Department of Public Health;
  • Schools to create a COVID-19 safety plan and to share this plan on the school’s website at least five days before the school reopens;
  • Schools to report a student or employee’s positive COVID-19 test to the local health officer within 24 hours, if the student or employee was infectious on campus; and
  • Schools must make sure that all services to students with disabilities comply with students’ IEPs.

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.