New COVID-19 Legislation Impacts Timelines for Special Education Assessment Plan Development; Student Records Requests; Uniform Complaint Procedures; and English Language Proficiency Assessments

03.17.2020

On March 16, 2020, California’s Assembly and Senate took immediate legislative action in response to Governor Gavin Newsom’s directive to hasten legislation in response to COVID-19. To that end, the Assembly amended AB 117 (viewable in full at http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB117&search_keywords=coronavirus), and the Senate amended SB 117 (viewable in full at http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB117&search_keywords=coronavirus). The Assembly and Senate Bills are functionally identical.

If both houses approve a bill, it then goes to the Governor. The Governor has three choices. The Governor can sign the bill into law, allow it to become law without his or her signature, or veto it. A governor's veto can be overridden by a two thirds vote in both houses. Most bills go into effect on the first day of January of the next year. Urgency measures take effect immediately after they are signed or allowed to become law without signature. It is our understanding that this legislation is emergency legislation and effective immediately upon passage as opposed to most legislation that becomes effective January 1 of the year following passage.

Additionally, the United States Department of Education, Office for Civil Rights (OCR) issued a “Fact Sheet” on March 16, 2020, which provides useful information that should be read in conjunction with California’s newest legislation above. The full Fact Sheet is viewable at https://www2.ed.gov/about/offices/list/ocr/docs/ocr-coronavirus-fact-sheet.pdf.

This Alert focuses on (1) timeline waivers for special education assessment^[1] plan development, (2) timeline waivers for responding to records requests and transfer of records to new local educational agencies (LEA), (3) timeline waivers for Uniform Complaint Procedures (UPC) complaints, (4) timelines for English Language (EL) Proficiency testing and (5) relevant information from  OCR on IEP and Section 504 meetings and assessment timeline extension during a school closure.

Special Education Assessment Plan Development

AB 117 and SB 117 waive all California timelines associated with the development and submission of a proposed special education assessment plan to a parent or guardian “if a school is closed due to the coronavirus.” Current California law states that a proposed assessment plan shall be developed within 15 calendar days from the date of a referral for assessment, “not counting calendar days between the pupil’s regular school session or terms. . .” (See Ed. Code. § 56043, subd. (a).) The new legislation makes clear that COVID-19 school closure days shall be deemed “as days between a pupil’s regular school session, up until the school reopens and the regular school session reconvenes,” thereby extending the timeline. Significantly, the timeline is extended even if an LEA “continues to offer educational opportunities through distance learning, or independent student, or both, during the period of time a school is closed due to COVID-19.”

AB 117 and SB 117 therefore extend timelines for completing special education assessments, and convening IEP teams to review them, only by implication. In other words, because the 15-day timeline for new assessment plans is tolled during school closures for COVID-19, it follows that LEAs cannot be required to conduct and review assessments required by referrals made during the closure.

AB 117 and SB 117 do not exempt requirements for convening annual IEP team meetings or amendment IEP team meetings in response to parent requests. While we await further federal and/or state guidance on those topics, please refer to our recent Alert dated March 15, 2020, which discusses our interpretation of LEA obligations related to IEP team meeting and assessment  timelines during school closures.

Responding to Records Requests and Forwarding Records to a New LEA

Parents and legal guardians of all students, including special education students, have the right to inspect and/or receive copies of a student’s school records^[2] within five business days after the request is made orally or in writing. (See Ed. Code, §§ 56504, 49069.) Both AB 117 and SB 117 waive timelines under the same conditions as indicated above, i.e., during the period of a COVID-19 school closure and regardless of whether or not alternate instruction such as distance learning and/or independent study educational opportunities are made available.

The legislation also waives the five “working days” timeline for an LEA to transfer records, upon request, to a new LEA into which the special education student has enrolled. Again, this timeline waiver applies during the period of a COVID-19 school closure, regardless of whether or not distance learning and/or independent study educational opportunities are made available.

UCP Compliance

The new legislation states in simple terms that UCP “timelines” are extended by the length of time a school is closed due to COVID-19.

English Language Proficiency Testing

The timeline for testing for students’ EL proficiency under California law is “within 30 calendar days after the date of first enrollment in a California public school, or within 60 calendar days before the date of first enrollment, but not before July 1 of that school year.” Further, “each school district shall notify parents or guardians of the pupil's [EL test] results within 30 calendar days.” These timelines are now extended by 45 days, unless the Superintendent of Public Instruction establishes otherwise.

Additionally, the testing time windows for EL testing are extended for the length of school closure due to COVID-19 school closure or “until the end of the testing window, whichever comes first.”

OCR Guidance

This latest guidance from OCR acknowledges that LEAs have significant latitude and authority to take necessary actions to protect the health, safety, and welfare of students and LEA personnel during COVID-19 school closures. The guidance notes that while provision of educational services for students on IEPs or Section 504 plans should occur during a closure, if a school district does not provide any educational services to the general student population, then a school would not be required to do so either for disabled students during the same period of time. However, IEP and Section 504 teams must make “individualized determinations whether and to what extent compensatory services are needed. . .including to make up for any skills that may have been lost.”

As for assessments, of particular note is that IEP and Section 504 teams do not need to meet in person during a COVID-19 closure; however, “evaluations and re-evaluations that do not require face-to-face assessments or observations may take place while schools are closed, so long as a student’s parent or legal guardian consents.” Finally, if assessment requires face-to-face assessment or observation, the assessment is delayed until the school reopens. While OCR’s guidance does not have the force of law or supersede state statutes that are more protective and have not been suspended, it is instructive as we work to navigate these emergent times.

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^[1] As used in this Alert, “assessment” and “evaluation” are used synonymously.

^[2] The terms “school records,” “pupil records” and “education records” are used synonymously.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR presentation/publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

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