SB 89, SB 117, and CDE Guidance: What Local Educational Agencies Need to Know About the State’s Response to the Coronavirus (COVID-19)

03.21.2020

On March 17, 2020, in response to the COVID-19 crisis, the Legislature passed and the Governor signed Senate Bill No. 89 and Senate Bill No. 117, both of which take effect immediately, while the California Department of Education (CDE) issued guidance addressing distance education, school meals, and child care.

SB 89 & SB 117

SB 89 and SB 117 provide emergency relief to school districts, county offices of education, and charter schools (local educational agencies or “LEAs”) that have closed their schools due to COVID-19. SB 117 incorporates many of the provisions of Governor Newsom’s Executive Order N-26-20 (“Order”) into law. (A fuller discussion of the Order, by which the Governor ordered that certain funding and services be maintained during COVID-19 school closures, can be found in our prior Alert here: https://www.aalrr.com/newsroom-alerts-3611.)

Senate Bill 89 amends the Budget Act of 2019 and appropriates $500 million from the General Fund to be used for any purposes related to Governor Newsom’s March 4, 2020, proclamation of a State of Emergency due to COVID-19. This funding appropriation is necessary in order to implement government responses to COVID-19, including the continued receipt of funding and provision of educational, meal, and childcare services by LEAs as well as payments to employees while schools are closed, as contemplated by the Order.

SB 117 addresses a number of specific requirements for LEAs during the COVID-19 pandemic. The Bill waives specified legal requirements or deems them to have been met, extends timelines, and otherwise grants a variety of relief to LEAs during this period. A number of the specific provisions are focused on addressing issues implicated by the Order. SB 117 provides as follows:

ADA: For purposes of claiming average daily attendance (ADA) for apportionment for the 2019-20 school year, for LEAs that comply with the Order, the ADA reported for the second period and the annual period includes only all full school months from July1, 2019, through February 29, 2020, inclusive.
Payments to Employees/Contractors: The Legislature explicitly stated its intent that LEAs receiving such funding ensure that their employees and contractors are compensated and paid during the period of a COVID-19 school closure as reasonably anticipated if schools had not been closed. LEAs utilize a variety of contractors and employees (including temps and subs) providing a wide range of services. Each employment situation or contract should be considered on a case-by-case basis and reviewed with legal counsel.
Instructional Time: In order to prevent funding losses related to an instructional time penalty because of COVID-19 closures, the instructional days and minutes that an LEA would have offered pupils during the closure to comply with the requirements of Education Code Sections 41420, 46207. 46208, 47612.5(a)(1), and their implementing regulations, are deemed to be met during the closure period. Consistent with the terms of the Order, the county or district superintendent or charter school administrator must provide the State Superintendent of Public Instruction (SSPI) written certification that schools were closed due to COVID-19, and any other information requested by the SSPI.
Charter Schools: A charter school that does not include an independent study or distance learning program in its approved charter is not required to submit a request to materially revise its charter in order to offer such programs during the period of time during which the charter school is closed due to COVID-19 and is complying with the Order.
After School Program Funding: To ensure continuity of funding for after school programs established by the After School Education and Safety Program (Education Code sections 8482 et seq.), program grantees that have a COVID-19 school closure and comply with the Order shall be credited with the average annual attendance that they would have received if they had been able to operate the entire program during the period of closure.
Childcare Program Funding: Notwithstanding the usual statutory requirements for administrative rulemaking to the contrary, the SSPI shall develop informal directives and bulletins, in compliance with Executive Orders, to address contractual and reporting requirements applicable for the 2019-20 fiscal year for childcare and development programs impacted by COVID-19. To ensure continuity of payments, the attendance and reporting requirements of Education Code §§ 8221.5, 8230, 8235, 8240, 8245, 8250, 8351, 8353, and 8354 and California Code of Regulations, Title 5, § 18056, are waived for state-subsidized childcare and development programs that comply with an Executive Order and the SSPI’s guidance. Reimbursement for these programs shall be based on “the most recent certified record or invoice available.”
Assessment: The time for LEAs to assess newly enrolled English learner students for English language proficiency is extended by 45 days, unless otherwise determined by the SSPI Additionally, the testing window for the California Assessment of Student Performance and Progress (CAASPP) and annual English Language proficiency assessments, as well as 5^th, 7^th, and 9^th grade physical performance testing, is extended by the length of time a school is closed due to COVID-19, or until the end of the testing window, whichever comes first.
Uniform Complaint Procedure: The Uniform Complaint Procedure timelines are extended by the length of time a school is closed due to COVID-19.
Students with Special Needs: California timelines related to serving students with special needs are also extended, which issues are described with specificity in our separate Alert, found here: https://www.aalrr.com/newsroom-alerts-3620.
Cleaning & Personal Protective Equipment for Classroom-Based Programs: $100 million is appropriated from the General Fund to the SSPI to be administered on the basis of ADA to LEAs that provide a classroom-based educational program to students after March 4, 2020, and before June 30, 2020. The funds shall be used to purchase personal protective equipment and/or to pay for supplies and labor related to cleaning schoolsites. An eligible LEA shall not receive less than $250 per schoolsite.

Together, SB 89 and SB 117 provide funding and explicit legal authority to help address the State of Emergency created by COVID-19 as well as to implement the purposes and direction in the Governor’s Order for continued funding and educational services during school closures necessitated by COVID-19.

CDE GUIDANCE

The CDE’s guidance of March 17, 2020, addresses distance education, school meals, and child care. (A discussion of these topics, with a focus on distance education, is addressed in our prior Alert https://www.aalrr.com/newsroom-alerts-3624). Additional concerns arising from the CDE Guidance with respect to school meal programs and child care are as follows:

School Meals

During school closures necessitated by COVID-19, CDE recommends that LEAs utilize the Summer Food Service Program (SFSP) and the National School Lunch Program Seamless Summer Option (SSO) to serve meals to students in non-congregate settings. In determining the logistics of how to ensure students maintain social distancing requirements, CDE recommends:

LEAs collaborate with each other to prepare and distribute meals, including locating meal distribution sites in areas that are easily accessible to children eligible for free or reduced-price meals, including non-school sites convenient to the community.
Distribution can be via “drive thru” lines, school bus delivery, or other creative methods, at times selected in light of requirements that a student must be present to pick up the meal. Note that other employees (e.g. drivers) could be repurposed and utilized in this effort, with LEAs potentially reassigning them using emergency authority or employees’ status as “disaster service workers.” (Gov. Code § 3100 et seq.) We recommend that LEAs work with their legal counsel on implementing any such emergency or disaster service worker assignments. Outreach efforts regarding meal distribution should be in multiple languages and made via various methods such as social media, e-mail, robocalling, newsletter, etc.
We note that on March 19, 2020, the President signed into law HR 6201, the Families First Coronavirus Response Act, which also included the passage of the Maintaining Essential Access to Lunch for Students Act and the COVID–19 Child Nutrition Response Act. These laws provide that the Secretary of Agriculture may grant requests by a state or eligible service provider to waive any requirement under the Richard B. Russell National School Lunch Act (42 U.S.C. 1760(1)) or the Child Nutrition Act of 1966 (42 USC 1771 et seq.), or any of their corresponding regulations, for purposes of providing meals and meal supplements under such Acts during a school closure due to COVID-19. CDE has advised that it is actively pursuing waivers in this regard.

Child Care

Note: LEAs have legitimate concerns about employee safety in the childcare setting. While LEAs are not obligated to provide childcare, some LEAs may opt to do so, including potentially for certain purposes (e.g. for children of first responders).

With respect to childcare, the CDE Guidance recommends considering how LEAs can assist in ensuring students are supervised during school hours while schools are closed due to COVID-19. CDE’s recommendations include:

Develop a plan for ensuring students are supervised during school hours. A plan may include assisting families by providing a list of known local programs that are open to provide services, and connecting parents to local resources and referral agencies.
Consider allowing the use of school sites as pop-up childcare programs for working families. CDE asks LEAs to consider such services to address the needs of working families – in particular, health workers, emergency response personnel, key governmental staff, and child care workers. If an LEA opens its space for a pop-up child care center, it will need to work with the regional office of the California Department of Social Services’ Community Care Licensing Division to ensure that the space meets state standards, in addition to collaborating with state and local health authorities. Contact information for the Community Care Licensing Regional Offices can be located at: https://www.cdss.ca.gov/Portals/9/CCLD/Community%20Care%20Licensing%20Division%20Child%20Care%20Offices.pdf.
Consider providing temporary employer-sponsored childcare. If an LEA wishes to provide employer sponsored child care services, the California Department of Support Services (CDSS), has established an emergency waiver for the operation of temporary child care facilities. Terms and conditions for temporary employer-sponsored child care may be located at: https://www.cdss.ca.gov/Portals/9/CCLD/PINs/2020/CCP/PIN_20-04-CCP.pdf.
Partner with local resource and referral agencies to connect families in need of childcare.

If an LEA opts to provide childcare services, it will be required to follow all current and relevant directives and guidelines, including establishing or updating and implementing an Injury and Illness Prevention Program (IIPP) to protect employees from all worksite hazards, including infectious diseases. Such IIPPs must include information on employee training and preventing the spread of COVID-19 in the workplace. LEAs providing childcare must also establish a plan for children who become sick at the facility. Relevant guidance includes: CAL/OSHA, Guidance Regarding Childcare Facilities, Safety & Health Guidance COVID-19: Infection Prevention in Childcare Programs (https://www.dir.ca.gov/dosh/Coronavirus/COVID-19-Infection-Prevention-in-Childcare-Programs-Guidance.pdf); California Department of Social Services, Terms and Conditions for Temporary Employer Sponsored Childcare (https://www.cdss.ca.gov/Portals/9/CCLD/PINs/2020/CCP/PIN_20-04-CCP.pdf); and Centers for Disease Control and Prevention. Coronavirus Disease (COVID-19): Interim Guidance for Administrators of US K-12 Schools and Childcare Programs (www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/guidance-for-schools.html