Coronavirus K-12 Education

Coronavirus K-12 Education

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

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).  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.

 

California Department of Education Issues “Frequently Asked Questions” About Assembly Bill 130 Independent Studies

On September 20, 2021, six families of students with intellectual and developmental disabilities filed a civil rights complaint with the U.S. Department of Justice against the State of California and other state agencies for violating the American with Disabilities Act (ADA). The families argued that the state education system denies disabled students the alternative to in-person classes that Assembly Bill (AB) 130, a new state law, provides to other students. Disability Rights Education & Defense Fund (DREDF) and the Arc of California, both organizations that advocate for people with disabilities, are also complainants. The families and organizations are represented by Disability Rights California (DRC), DREDF, and the law firm of Vanaman German, LLP. You can read about the complaint here.

On September 28, 2021, DRC, DREDF, and Vanaman German LLP filed a lawsuit against the State of California and other state agencies for violating federal disability discrimination laws. The complaint alleges that AB 130 discriminates against disabled students by denying them the independent study programs that are available to nondisabled students. The case is E.E. et al. v. State of California et al., Case No. 3:21-cv-07585-AGT, filed with the United States District Court for the Northern District of California.

A copy of the complaint is here.

In response to this lawsuit, on October 5, 2021, the California Department of Education (CDE) issued “Assembly Bill 130 Frequently Asked Questions.” This webpage says that

  • Independent study is an option for all disabled students if the Individualized Education Program (IEP) team evaluates the student’s needs and determines a free appropriate public education (FAPE) can be provided with supports in independent study.
  • Students are not required to complete work independently to qualify for independent study.
  • If you and your child’s school agree to change your child’s placement to independent studies, you and the school can make that change to your child’s IEP without an IEP meeting.
  • You can disagree with your child’s school if the school does not agree to place your child on independent studies. If you disagree, then the school must provide your child with services from the last signed IEP. These services must be provided while you and your child’s school try to resolve the disagreement.
  • Schools cannot refuse to consider providing independent study to a student solely on the basis of the student’s disability. They must make an individualized determination about the ability to provide FAPE in an independent study setting.
  • Independent study is a change of placement for a special education student.
  • You can contact your Parent Training and Information Center or Family Empowerment Center for information and support.
  • AB 130 does not offer independent studies for preschool services for students with disabilities.
  • AB 130 does not prohibit students ages 18-22 from independent studies.

In light of this new guidance, DRC encourages parents/guardians who want to place their children on independent study to write to their IEP teams as soon as possible. A sample letter to your IEP team and Superintendent is below.

If you and the school district cannot reach an agreement, you can file a due process complaint with the Office of Administrative Hearings or a compliance complaint with the California Department of Education. Please see this link about filing complaints. You can also contact Disability Rights California or Disability Rights Education & Defense Fund for assistance:

  • Disability Rights California: 1-800-776-5746 or TTY call 1-800-719-5798, available Monday/Tuesday/Thursday/Friday from 9:00AM – 3:00PM.
  • Disability Rights Education & Defense Fund: 1-800-348-4232 or email iephelp@dredf.org.

Sample Letter Requesting Independent Studies

Dear IEP Team and Superintendent _____:

I am the parent of ___, who has _________.  My child has an IEP. My child is at increased risk of exposure to COVID-19 and for severe outcomes from COVID-19 because:____. My child was able to participate in distance learning last year, with access to [pick one: some of/most of/all of] the services in their IEP.  

My child’s health would be put at risk by attending school and/ or receiving special education services in person. As such, my child’s individual circumstances require instruction and services delivered through a virtual learning model, with services and supports through the IEP.

I met with my child’s IEP team on ______________ to ask for Independent Study for my child. But, the IEP team refused [or is considering home hospital].  

I am requesting that you allow my child to enroll in Independent Study, with services and supports. Alternatively, I am requesting you allow my child to continue in distance learning with services and supports in order to meet my child’s individual needs. Please review the guidance document recently released by the California Department of Education about Independent Study under AB 130, https://www.cde.ca.gov/sp/se/ac/ab130faq.asp. This guidance states that students like my child should not be excluded from Independent Study, just because they need adult support to participate.

The guidance also states that while we are trying to work out my child’s education, they should still be getting the services in their IEP, even though they are at home. (“While the LEA and the parents/guardians are working to find the best option, the student needs to be receiving services as indicated on the operative IEP, and the LEA needs to ensure that services are being provided pursuant to that IEP.”)  

Please respond to me by email or by letter by ___________________ [You should state a specific day that the District needs to respond to you by]. to let me know your position on this important matter.

Sincerely,
[First and Last Name of Parent/Guardian]
[Mailing Address]
[Email]

 

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.

 

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. Two of these requirements expired in June 2021, but the following requirement remains in place.

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