Deal Reached on School Reopening Legislation

03.03.2021

Updated March 5, 2021
Assembly Bill 86 was signed into law by Governor Newsom on March 5, 2021.

Please note that: (1) schools may reopen as late as April 1 to receive full funding under AB 86; (2) the final bill did not provide for a grace period when schools move from one tier to the next; and (3) the Governor has separately announced that the State anticipates loosening the tier definitions in the next several weeks, which may allow some schools to reopen sooner than authorized under existing California Department of Public Health guidance.

On Sunday, February 28, 2021, Governor Newsom and Legislative leaders announced a deal on long-anticipated K-12 school reopening legislation and funding. The agreement, which is contained in Senate Bill 86 and Assembly Bill 86 (“SB/AB 86”), appears likely to be finalized and signed by the end of this week (i.e. March 5, 2021). The announced terms of the deal include $6.6 billion in total funding, including $2 billion as an incentive for schools to provide in-person instruction and $4.6 billion for expanding learning opportunities. Details of SB/AB 86, as contained in the current version of the proposed legislation, are outlined below.

$2 Billion In-Person Instruction Grant

The $2 billion in-person instruction grant will be apportioned to local educational agencies (“LEAs”) proportionally on the basis of an LEA’s local control funding formula entitlement determined as of the 2020-21 second principal apportionment certification. To receive full funding under the in-person instruction grant, LEAs must: (1) meet the deadline to reopen for funding eligibility; (2) offer in-person instruction as defined by SB 86; and (3) reopen for specific populations of students as specified by SB/AB 86. Our Student Services and Disabilities Law Practice Group will be issuing a separate Alert concerning special populations, e.g., students with disabilities and prioritized pupil groups (including at-risk and foster youth).

When is the Deadline to Reopen to Qualify for Full Funding Eligibility?

SB/AB 86 apportions $2 billion to LEAs (including school districts, county offices of education, and charter schools, though excluding non-classroom based charters) as an in-person instruction incentive grant. To receive full funding, all LEAs must offer in-person instruction by March 31, 2021. LEAs that only commence offering in-person instruction after April 1, 2021 will have their apportionment reduced by 1% for each day of delay. LEAs that do not offer in-person instruction by May 15, 2021 will forfeit their share of the $2 billion in-person instruction grant.

Once in-person instruction commences, an LEA must continuously offer in-person instruction to qualify for full funding unless it is ordered to discontinue in-person instruction by a public health order. If an LEA fails to do so, it will forfeit its share of the $2 billion in-person instruction grant.

What Constitutes In-Person Instruction?

“In-person instruction” is defined in SB/AB 86 as “instruction under the immediate physical supervision and control of a certificated employee of the LEA while engaged in educational activities required of the pupil.”

In-person instruction could include hybrid programs where students attend in-person fewer than five days a week, provided that the LEAs are offering in-person instruction “to the greatest extent possible.”

For What Grade Levels Must In-Person Instruction be Offered?

Depending on the relevant county’s Blueprint for a Safer Economy tier status, LEAs must offer optional in-person instruction for the following students:

For counties in the “Deep Purple” tier (adjusted case rate of 25 or more per 100,000): LEAs must offer optional in-person instruction to: (1) students with exceptional needs consistent with their IEPs pursuant to the California Department of Public Health (“CDPH”) Guidance Related to Cohorts, and (2) prioritized student groups (defined in SB/AB 86 to include pupils at risk for abuse, homeless pupils, foster youth, English learners, pupils without access to technology, and disengaged pupils.) If the total number of prioritized pupils exceeds practical capacity to maintain health and safety pursuant to its COVID-19 safety plan, the LEA may limit the number of prioritized pupils that receive in-person instruction to its maximum practical capacity.
For counties in the “Purple” tier (adjusted case rate of under 25 per 100,000): LEAs must offer optional in-person instruction to all pupils in kindergarten and grades 1 and 2, in addition to students with exceptional needs and prioritized students groups.
For counties in the “Red/Orange/Yellow” tiers (adjusted case rate of under 7 per 100,000):
- Elementary schools must additionally offer optional in-person instruction to all pupils in grade 3 through the highest elementary school grade, up to and including grade 6, in addition to students with exceptional needs and prioritized students groups.
- Middle and high schools must offer optional in-person instruction to all pupils in at least one full grade level, in addition to students with exceptional needs and prioritized students groups.

The current text of SB/AB 86 does not include any grace period, as counties move through the tiers, though language on this point could be added before the legislation is finalized.

Additional Requirements

Testing. For LEAs in Purple tier counties, LEAs must conduct asymptomatic testing for staff and students participating in in-person instruction consistent with any of the CDPH testing cadences as detailed in the CDPH COVDID-19 and Reopening In-Person Instruction Framework & Public Health Guidance for K-12 Schools in California, 2020-2021 School Year (p. 43). However, an LEA will not be required to follow CDPH testing guidelines if it provides in-person instruction on or before March 31, 2021, or if its governing board adopts a plan to provide in-person instruction and has publicly posted its COVID-19 Safety Plan on or before March 31, 2021. LEAs in counties that move out of the Purple tier (i.e. into the Red tier or lower) are also not required to maintain asymptomatic testing for staff and students consistent with the CDPH testing cadences.
Funds from the incentive for in-person instruction may be used for any purpose consistent with providing in-person instruction, including: COVID-19 testing, cleaning and disinfection, personal protective equipment, ventilation and other schoolsite upgrades necessary for health and safety, salaries for certificated or classified employees providing in-person instruction or services, and social and mental health support services provided in conjunction with in-person instruction.
The instructional time, instructional day, and other distance learning requirements under SB 98 are still applicable. For more information about SB 98, please refer to our prior alert.
LEAs will be notified of their estimated apportionments within 15 days of the effective date of SB/AB 86. The deadline to spend these funds is August 31, 2022.

Expanded Learning Opportunities Grant

All LEAs (including nonclassroom-based charter schools) will receive a portion of the $4.6 billion expanded learning opportunities grant in proportion to their total LCFF entitlement target, with an additional $1,000 per homeless student, for the limited purpose of implementing expanded learning time and academic interventions. LEAs receiving this funding must “implement a learning recovery program” that provides supplemental instruction, support for social and emotional well-being, and meal services, to, at minimum, pupils who are eligible for free or reduced-price meals; English learners; foster youth; homeless pupils; pupils who are individuals with exceptional needs; pupils at risk of abuse, neglect, or exploitation; disengaged pupils; and pupils who are below grade level; including, but not limited to, those who did not enroll in kindergarten in the 2020-21 school year; credit-deficient pupils; high school pupils at risk of not graduating; and other pupils identified by certificated staff.

While up to 15% of funds received may be used to support distance learning, at least 85% must be expended for the enumerated purposes below only:

Extending instructional learning time.
Accelerating progress to close learning gaps.
1. Tutoring or other one-on-one or small group learning supports provided by certificated or classified staff.
2. Learning recovery programs and materials.
3. Educator training.
Integrated pupil supports to address barriers to learning.
Community learning hubs that provide pupils with access to technology.
Supports for credit deficient pupils to complete graduation or promotion.
Additional academic services such as diagnostic, progress monitoring, and benchmark assessments of pupil learning.
Training school staff (as specified).

SB/AB 86 also provides that at least 10% of the total funds (coming from the pool of 85%) must be used to hire paraprofessionals to provide supplemental instruction and support through the duration of the program, with a priority for full-time paraprofessionals. The bill specifically lays out the legislative intent that “a[n] LEA prioritize rehiring paraprofessionals subject to layoff or release after the expiration of the protections included for classified employees … and further increasing the number of paraprofessional staff….”

LEAs that did not receive any of the $2 billion in-person instruction incentive may also use 10% of these funds for reopening costs.

LEA Boards must also adopt at a public meeting an expenditure plan for these funds prior to June 1, 2021, but may expend the funds prior to this time. SB/AB 86 requires the California Department of Education to develop a template for this plan, and requires that the plan template include a section requiring an explanation of how LEAs will coordinate these funds with federal Elementary and Secondary School Emergency Relief (ESSER) funds and how the planning process engages stakeholders and informs parent/guardians of pupil opportunities.

The funds apportioned under the expanded learning opportunities grant must be expended by August 31, 2022.

Other Provisions, Including COVID-19 Reporting & Public Health Requirements

Required notification of positive cases to local public health officer. Consistent with current CDPH guidance on COVID-19 Case Reporting by Schools, upon learning that an employee or student has tested positive and was present on campus while infectious, LEAs must immediately (no later than 24 hours) notify the local health officer, with or without prior consent. The required notification must include name, date of birth, contact information, and date of positive test. The bill prohibits the local health officer from disclosing such information, subject to exceptions such as to the state or other local health officers in order to investigate and determine the source of infection.

The bill specifically provides that the information reported under this requirement is not subject to disclosure under the California Public Records Act, and does not replace existing reporting requirements for communicable disease.

The bill also provides that beginning on March 15, 2021, any single school site with two or more outbreaks of COVID-19 will be subject to a safety review by the CDPH.

Required notification of in-person attendance to CDPH & COVID-19 Safety Plans. Beginning March 15, 2021, each LEA and private school must report the following information to CDPH twice each month:
- Number of enrolled pupils by school site and, if applicable, school district.
- For nonclassroom-based charter schools, the total number of pupils enrolled and the number of pupils attending each resource center, if any.
- Number of pupils participating in (1) full-time in-person instruction, (2) a mix of in-person and distance learning, known as hybrid learning, and (3) distance learning by school site and, if applicable, school district.
- Number of employees working onsite at a school site and, if applicable, school district.
- Number of pupils being served in cohorts while the school is closed for in-person instruction and the support and services they are receiving.
- For school districts with school sites with pupils participating only in distance learning, the reasons why in-person instruction is not being offered and the barriers the school site or school district faces in providing in-person instruction.
- Any additional information requested by the CDPH.
COVID-19 Safety Plan Requirements.

Each LEA and private school offering in-person instruction must post a completed COVID-19 Safety Plan on the website homepage, provided that if the first day of in-person instruction is April 1 or later, the COVID-19 Safety Plan must be posted online five (5) days before school opens for in-person instruction.

LEAs and private schools in Purple tier counties must also submit a COVID-19 Safety Plan to the local public health department and CDPH for review, and follow the review procedure and timeline set out in the COVID-19 industry sector guidance for schools and school-based programs.

Consistent with the industry sector guidance, the COVID-19 Safety Plan will be made up of the written COVID-19 Prevention Program required by Cal/OSHA, and the CDPH COVID-19 School Guidance checklist.

Collective Bargaining. In a departure from the Governor’s reopening proposal, SB/AB 86 does not impose any requirements relating to collective bargaining agreements or memoranda of understanding, nor does the bill expressly require consultation with or approval from labor or community organizations. Rather, it “encourages” LEAs to “engage, plan, and collaborate on program operation with community partners and expanded learning programs, and leverage existing behavioral health partnerships and Medi-Cal billing options, in the design and implementation of services provided under this section.”
Vaccine. The Government Operations Agency will prioritize COVID-19 vaccination for Tier 1B, including setting aside 10% of all first dose appointments available to the state specifically for education sector staff. However, the bill provides that vaccination of school staff or pupils is not a prerequisite for providing in-person instruction, consistent with federal guidance.
Other Appropriations. $5 million is appropriated to the California Collaborative for Educational Excellence for the purpose of providing support to LEAs to maximize positive pupil outcomes and most effectively use funds. $25 million is appropriated for the Safe Schools for All Team, which will coordinate technical assistance, community engagement, increased transparency, and enforcement by the appropriate entity for public school health and safety during the COVID-19 pandemic.
Cal Grant Waiver. This bill also authorizes the California Student Aid Commission to waive the requirement that homeschooled students submit standardized test scores in lieu of a Grade Point Average (GPA) for the 2021-22 academic year to qualify for the Cal Grant program. This waiver authority would only apply to students that certify they are unable to access a standardized test due to the impacts of the COVID-19 pandemic.
Coronavirus Relief Fund Deadline. This bill also clarifies the deadline for LEAs to use funds apportioned from the Coronavirus Relief Fund is May 31, 2021, and provides that LEAs that retain unspent funds after December 30, 2020 must recertify that funding received will be used in full compliance with federal law by the new May 31, 2021 deadline.

Conclusion

Reopening criteria and requirements have been a moving target for LEAs facing pressures to resume in-person instruction while ensuring student and staff safety. This bill provides some degree of clarity though it imposes additional obligations on LEAs. LEAs are encouraged to discuss these matters with legal counsel prior to taking action.