CDE Issues Update to Its Special Education Guidance for COVID-19

10.01.2020

On September 30, 2020, the California Department of Education (“CDE”) issued a much-anticipated update to its Special Education Guidance for COVID-19.  In the updated guidance, CDE addresses questions on the following topics with respect to special education students: in-person instruction, distance learning, IEP implementation, special education assessments, and social-emotional wellness.  The most salient points from the guidance are provided below.

In-Person Instruction

CDE reaffirms that local educational agencies (“LEA”) may offer in-person supports and services to small groups of students per the California Department of Public Health’s (CDPH) August 25, 2020 guidance on small cohorts (“Cohort Guidance”).  

CDE confirms that the Cohort Guidance applies to all special education students, including adult students ages 18-22. 

CDE also confirms that an elementary school waiver is not required in order to provide in-person supports and services pursuant to the Cohort Guidance.  However, CDE reiterates the need to work with local health officials when developing plans to provide in-person services and supports to small cohorts and emphasizes the requirement that LEAs “adhere to any applicable, more restrictive local public health directive.”

Distance Learning

CDE addresses the new requirements related to individualized education programs (“IEP”) imposed by Senate Bill (SB) 98, which Governor Newsom passed on June 29, 2020.  Please see our previous alerts for a full discussion of SB 98’s requirements. 

With respect to SB 98’s “emergency conditions description” requirement, which applies to initial IEPs and the next “regularly scheduled revision” of an IEP, CDE specifically references annual IEPs.  This is consistent with our interpretation of Education Code section 56345(a)(9)(B) – i.e., that regularly scheduled revisions of an IEP include annual, triennial and grade level transition IEP team  meetings, but not necessarily an amendment IEP meeting. 

CDE also addresses the impact of SB 98’s minimum instructional minutes requirement on the implementation of specialized academic instruction (“SAI”).  CDE ultimately advises that it is up to IEP teams to determine the amount of SAI required for a particular student based on that student’s individualized needs.  CDE ends this discussion by stating that “LEAs are required to implement IEPs,” which suggests that the frequency and duration of SAI services in a student’s IEP must be implemented during distance learning, regardless of SB 98’s requirement for minimum instructional minutes. 

IEP Implementation during Emergency Conditions

CDE confirms that the emergency conditions description must be part of the IEP, as opposed to a separate document, and constitutes part of the offer of a free appropriate public education.  Parents must consent to the emergency conditions description, just as they must consent to all other aspects of the IEP.

If parents take issue with the emergency conditions description, the student is not demonstrating expected progress, and/or the student is not accessing the distance learning services being offered, CDE encourages IEP teams to meet to discuss these issues.

Lastly, CDE confirms that the emergency conditions description does not need to include provisions for how a LEA will provide feedback and information to parents during the school closure/distance learning.  However, during the 2020-2021 school year, Education Code section 43504(g) requires each school to “regularly communicate” with parents/guardians regarding their student’s academic progress. 

Special Education Assessments

CDE confirms that LEAs must continue to conduct special education assessments while providing distance learning.  Once again, there have been no waivers of federal special education laws and per SB 820 no waivers of state special education laws for the 2020-2021 school year (see below). 

CDE also states that in-person assessments can be conducted at this time because the CDPH guidance “does not expressly prohibit in-person assessments” and the Cohort Guidance “permits in-person instruction and services, including assessments.”  Moreover, if an elementary school has obtained a waiver, those schools may conduct in-person assessments. 

Lastly, CDE confirms that the special education timeline waiver provisions in Section 8 of SB 117 are no longer in place.  Per SB 820, which Governor Newsom signed on September 18, 2020, the timeline waiver provisions became inoperative retroactive to July 1, 2020.    Nevertheless, we are monitoring how CDE will respond to SB 820, given its retroactive impact.

Social-Emotional Wellness

If students are unable to meaningfully engage in distance learning due to social, emotional, and/or mental health needs, CDE advises that LEAs must address those concerns through the IEP process, just as LEAs would in a pre-COVID-19 context.  Further, Education Code section 43503(b) explicitly requires LEAs to address student needs during distance learning, including providing supports to students who are struggling or considered to be high-risk and implementing special education, related services, and accommodations for students with IEPs in the distance learning environment. 

We will continue to update you regarding guidance specific to serving California students who are eligible for special education – particularly, as you begin the process of bringing students back for in-person assessments and/or instruction.

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 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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