The Impact of Governor Gavin Newsom’s Executive Order N-26-20 on Special Education Departments

03.15.2020

On March 13, 2020, Governor Gavin Newsom issued Executive Order N-26-20 (EO). The entire EO can be viewed at https://www.gov.ca.gov/wp-content/uploads/2020/03/3.13.20-EO-N-26-20-Schools.pdf.

This Alert discusses the EO as to COVID-19 campus closures for students with an individualized education program (IEP) pursuant to the Individuals with Disabilities Education Act (IDEA) or an educational plan pursuant to Section 504 of the Rehabilitation Act of 1973 (Section 504).^[1] This Alert also addresses making available a free appropriate public education (FAPE) during a campus shutdown, timeline compliance for evaluation or assessment of students, the convening of IEP and Section 504 team meetings during such closures, and extended school year (ESY) for eligible students under an IEP.

Salient Portions of the EO

The EO made a number of executive decisions below that are relevant to students with IEPs or Section 504 plans:

If a local educational agency (LEA), i.e., school district, county office of education or charter school, closes its schools due to COVID-19, the LEA will continue to receive state funding to support the following activities during the period of closure:
- Continue delivering high-quality educational opportunities to students to the extent feasible through, among other options, distance learning and/or independent study. Further, the LEA is not prohibited from offering distance learning or independent study to impacted students. To the extent any state or local law might have been interpreted to the contrary, that law is waived.
- Continue to pay LEA employees.

The EO stated that by March 17, 2020, the California Department of Education (CDE) and Health and Human Services Agency (HHSA) shall jointly issue guidance^[2] that will address the following subjects relevant to students with IEPs or Section 504 plans:

Implementing distance learning strategies and addressing equity and access issues that may arise due to differential access to internet connectivity and technology.
Ensuring students with disabilities receive a FAPE consistent with their IEP plan and meeting other procedural requirements pursuant to federal and state law.

Making Education Available or Not During a Campus Closure to Students with Disabilities?

With the onset of mass school closures throughout California this past week, some LEAs have opted to provide no services of any kind to any students during the first week of a longer term closure. The presumptive purpose, amongst others, is to assess educational service delivery capabilities. That is understandable. What is critical, however, is that if educational services are made available to general education students at any point in time, students with disabilities must also be provided educational services so as not to create inequity among students. Failing to do so will subject an LEA to claims of disability discrimination based on denial of equal access/opportunity in violation of Section 504 and the Americans with Disabilities Act (ADA).

Given the federal Department of Education’s advisory that states changes of placement do not occur during temporary emergency measures (i.e., closures of less than 10 consecutive school days), we believe that in the event of closures greater than 10 schooldays, LEAs will be required to make available for students with IEPs and Section 504 plans some level of educational programing consistent with their IEPs or Section 504 plans in order to provide FAPE to affected students. (Questions and Answers on Providing Services to Children With Disabilities During a Covid-19 Outbreak, Answer to Question A-4 (OSEP March 2020).)

Provision of FAPE

The EO indicates that during the period of a closure, students eligible for an IEP (and, presumably, those eligible for a Section 504 plan) are entitled to receive a FAPE. We are mindful that during the period of a closure LEAs cannot serve many students in literal compliance with all aspects of operative IEPs or Section 504 plans. Accordingly, LEAs need to determine service delivery systems, taking into consideration the length of the closure, work restrictions on LEA employees and contractors such as certified nonpublic schools and agencies, specific capabilities of the LEA, including technology capabilities, and anything else that can or cannot be implemented as specifically written in the IEP or Section 504 plan. The legal standard of FAPE has been determined by the United State Supreme Court, most recently in 2017. In Endrew F. ex rel. Joseph F. v. Douglas County School Dist. RE-1 (2017) 137 S.Ct. 988, the Supreme Court of the United States declared that a public school district satisfies its substantive FAPE obligations pursuant to federal law, when the IEP is reasonably calculated to enable a student to make progress appropriate in light of the student’s circumstances. In the circumstances of a campus closure, campus and classroom access for students, teachers and related services providers is non-existent. Disabled children are also not able to be educated in the least restrictive environment (LRE) which means being educated alongside their peers in the same environment.

In lieu of typical classroom instruction, some LEAs may opt to deliver regular instruction or specialized academic instruction (SAI) through distance learning. For those students with disabilities lacking home based technology, for purposes of both FAPE and equal access/opportunity and anti-discrimination compliance, an LEA will need to establish a WiFi “hot spot” in the home or otherwise make available internet access such that students with disabilities can access the same alternative educational opportunities being provided to nondisabled children during any closure. Assuming the option exists for related services, some related services that are required to be provided individually (e.g., speech/language therapy, counseling, educationally related mental health services/educationally related intensive counseling services, etc.) may be provided through a “tele-therapy” or “tele-service” model to the extent available and feasible. Replicating small group services, on the other hand, may not be feasible for any LEA to implement in an alternative setting if not at school.

Evaluation/Assessment^[3] and IEP Timeline Compliance

One of the nagging issues posed by the prospect of a long term closure (i.e., several weeks to several months), is the obligation of an LEA to comply with various timelines for completing evaluations/assessments and holding IEP and Section 504 team meetings. Unlike Section 504 team meetings which do not have specified timelines for evaluation completion and convening of team meetings, federal and state law impose specific timelines for evaluation completion and IEP team meetings. However, many districts have board policies regarding Section 504 in which timelines mirror those for IEPs. California law has a provision in Education Code § 56344(a) that extends timelines in the following circumstances:

An individualized education program required as a result of an assessment of a pupil shall be developed within a total time not to exceed 60 days, not counting days between the pupil’s regular school sessions, terms, or days of school vacation in excess of five schooldays, from the date of receipt of the parent’s written consent for assessment, unless the parent agrees, in writing, to an extension. (Emphasis added)

It is our hope that the forthcoming guidance from the CDE/HSSA directed by Governor Newsom will address timeline compliance. Until such guidance is issued, we interpret Section 56344(a) as applying a tolling of the timelines in the event of any school closure “in excess of more than five schooldays.” Because no students, teachers or related service providers are reporting to campus and school is not “in session,” we believe that timelines should be extended where LEA-wide campus closures are in effect for more than five consecutive school days. However, shorter-term school closures, such as for a few days of deep cleaning or sanitizing would not be interpreted as triggering the tolling of the assessment and IEP timelines. Whether or not the CDE, the Office of Administrative Hearings (OAH), or the courts agree with this interpretation remain to be seen.

There are other issues as well. IEP teams and Section 504 teams are supposed to meet in person. That is where meaningful interaction and parent participation occurs. Telephone participation in an IEP team meeting is an exception to the rule, not the rule itself. (See Ed. Code, §56341.1) It is also unclear whether LEAs have the ability to conduct hundreds or thousands of multi-party telephonic IEP team meetings during any period of school closure. Does each team member have a printer and scanner in their home to print documents, scan documents or review digitally during the meeting? What is considered “lawful” participation under these circumstances if meeting timelines are not tolled? Furthermore, if these timelines are not tolled, there is a significant question as to whether or not any or all of the services agreed upon by an IEP team can even be implemented with fidelity during school closures.

Extended School Year

Extended school year (ESY) services in excess of the regular academic year are required for some students with IEPs. Interruption of the students’ educational programming may cause regression, when coupled with limited recoupment capacity, rendering it impossible or unlikely that the student will attain the level of self-sufficiency and independence that would otherwise be expected in view of his or her disabling condition. (See 5 C.C.R. § 3043)

In the absence of further guidance from federal and/or state authorities on ESY determinations for LEAs facing lengthy COVID-19 related closures, some students that might not otherwise qualify for ESY services may need to be considered for ESY in the summer of 2020 due to the extraordinary circumstances of the current COVID-19 crisis, but that will need to be on an individualized case-by-case basis.

[1] The EO does not mention Section 504 plans but we believe the EO is relevant and applicable to all educational plans for students with disabilities.

[2] Our firm will be issuing COVID-19 Alert No. 3 after this guidance is issued.

[3] The words “evaluation” and “assessment” are used synonymously.