COVID - OCR, SpEd, ELLs, Distance Learning

Guidance and Law During School Closures Due to COVID-19

March 19, 2020

This document provides a summary of the March 17, 2020 California Department of Education (CDE) Guidance (COVID-19 Guidance for K-12 Schools), information from the United States Department of Education (USDOE), federal Office for Civil Rights March 16, 2020 Fact Sheet, a brief summary of pertinent parts of California Senate Bill (SB) 117, and a discussion about Question A-1 from the USDOE March 12, 2020 FAQ (Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak).  We also provide some takeaways to consider in navigating the COVID-19 pandemic school closures.

I.  Summary of March 17, 2020 CDE Guidance on Distance Learning

On March 17, 2020, CDE issued COVID-19 Guidance for K-12 Schools (Guidance) that provides information in a number of areas related to the current school closures, including for distance learning. This Guidance is related to the Governor's Executive Order (EO) N-26-20, which addressed, in part, the physical closure of schools because of the COVID-19 pandemic.  EO N-26-20 assured school districts that state funding would continue during school closures to support the delivery of "high-quality educational opportunities," to the extent feasible, through options such as distance learning and/or independent studies.

The Guidance further provides considerations for school districts to weigh with regard to distance learning plans, equity and access issues, students with disabilities and English learners. Likewise, it provides an array of internet links and examples of distance learning models from several school districts.  Although we provide a summary below, we encourage all school districts to carefully review the Guidance, as well as the many resources it references to assist in setting up and implementing a distance learning plan. (The Guidance further addressed the provision of school meals and child care and supervision, which will be addressed in a separate document.)  

Definition of Distance Learning

The Guidance defines "distance learning" as instruction in which the student and instructor are in different locations, and may include video or audio instruction using a variety of communication (e.g. on-line interaction, television, video, telecourses, and telephone).  It may also include printed instructional materials "that are the subject of written or oral feedback," (e.g. written packets provided to a student and graded by teacher) With this definition, it appears that the CDE contemplates distance learning to include both high and low tech methods of delivering learning opportunities, and that there will be teacher interaction with students during these learning opportunities.

Development of a Distance Learning Plan, Equity and Ways to Deliver Instruction

Development of a distance learning plan and ensuring student access to that plan are key aspects of the Guidance.  In developing a distance learning plan, a school district should assess its ability to provide both high and low tech instruction and train staff to implement the adopted plan. Elements of the distance learning plan mentioned in the Guidance include assisting and training teachers to analyze the content and standards of a course and how to deliver instruction so courses can be completed, providing a continuum of delivery options for various grades, and a continuum of delivery methods, including on-line learning platforms with teacher interaction, online curriculum for student to access at home, online curriculum in labs and classrooms consistent with social distancing, paper packets, and in person settings with social distancing.

School districts must also take into consideration that not all students will have access to the technology needed for online instruction.  At the same time, the Guidance makes clear that the California Constitution prohibits school districts from requiring that students purchase or use their own devices to access instruction.  This means that whatever distance learning plan that a school district devises must take into account its student population, existing and available resources to transition to distance learning, and student access to technology. Moreover, the plan devised must be free of any fee or charge to students.

Note, however, that the Guidance indicates that equitable access does not mean a school district has to abandon an online model because some students may not have access to the online model.  Rather, it means that the plan should include "an analysis of alternate deliveries of comparable educational content."  In short, to ensure equitable access, the distance learning plan should contemplate different ways of providing comparable educational content.  "Most schools will need to offer multiple options and a combination of strategies to students, depending on accessibility to devices and the internet," and distance learning plans should focus on delivering "content to students across all platforms and delivery methods."

Distance Learning for Students with Disabilities

Regarding students with disabilities, the Guidance does not provide significant clarification above and beyond the March 12, 2020 USDOE Guidance. (Question A-1 of this March 12, 2020 guidance is discussed below.)  Instead, it reminds school districts that they must continue to serve students with disabilities by tailoring distance learning to their individual needs such that it provides educational benefit "to the greatest extent practicable under the circumstances." CDE will be creating a workgroup to develop models and strategies for serving students with disabilities in California and additional guidance is forthcoming.

Considerations for English Learners

Districts must develop a plan for serving English learners in alignment with the school district's language acquisition program. A school district's distance learning program must include instruction and services geared towards English learners. School districts should also be prepared to assess a student's progress in language acquisition once in-school instruction resumes and provide extra supports and services as needed to address any lack of expected progress.

Using Transportation Services to Support Distance Learning

CDE encourages school districts to get creative in how their existing transportation services can facilitate distance learning for their student populations. This potentially includes distributing meals to students, delivering wireless hot spot equipment, and bringing instructional packets to students who may not have online access. Again, always make sure any such transportation practices comport with local and state public health guidance.

II.    DOE Office for Civil Rights March 16, 2020 Fact Sheet and SB 117

The USDOE Office for Civil Rights (OCR), through its March 16, 2020 Fact Sheet, and the state legislature, through Senate Bill (SB) 117, have provided some guidance regarding meeting the procedural requirements under the IDEA.

  • Assessments: According to OCR, any assessments that require direct testing, observation, or in-person interview, should be delayed during school closures due to COVID-19. As a result, we believe timelines for an IEP team to review such assessments would necessarily need to be tolled until in-person instruction resumes.  Under SB 117, timelines to issue an assessment plan are tolled until in-person instruction resumes. "School closures," for these purposes, are days in which the school district is not providing in-person instruction, even if they are providing distance learning opportunities. The Legislature, however, encourages LEAs to respond as expeditiously as possible to assessment requests received during the period of time a school is closed due to COVID-19.  We note that SB 117 also states that it does not waive any federal requirements imposed by the IDEA.  We will continue to monitor guidance in this area from state and federal agencies to determine if more clarification is provided.
  • Records Requests: The five business day timeline for school districts to respond to parent requests for student special education records made under California Education code section 56504 is tolled until school reopens and the regular school session reconvenes. Accordingly, COVID-19 related non-instructional days do not constitute "business days" under SB 117, even if school administrators and staff are still working.  However, as with responses to assessment requests, the Legislature encourages LEAs to respond as expeditiously as possible to records requests received during the period of time a school is closed due to COVID-19.

III.   Question A-1 Services to Students During School Closure (Q&A on Providing Services to Children  with Disabilities During  the Coronavirus Disease 2019 Outbreak)

The USDOE issued guidance related to serving students with disabilities during this COVID-19 outbreak, which will assist school districts as they navigate issues related to COVID-19, including school closures and serving students with disabilities.  Below only addresses Question A-1 of this guidance.   

In Question A-1, the USDOE makes clear that if a school district closes and does not provide educational services to its general education population, then the school district is not required to provide services to students with disabilities.  Although some districts may want to choose this option, from the language of the EO N-26-20, and the CDE guidance issued as a result of the EO, it appears that school districts should provide some level of educational services during COVID-19 school closures in order to continue to receive state funding.  That said, if a school district decided not to provide any education, which we do not advise given the EO and CDE guidance, A-1 makes clear that in such a situation, a district would need to consider whether compensatory education is needed when school resumes. 

The USDOE makes clear in its answer to Question A-1 that "[i]f an LEA continues to provide educational opportunities to the general education population during a school closure, the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE." However, as explained by the USDOE, school districts, in this situation, "must ensure that, to the greatest extent possible, each student with a disability can be provided the special education and related services identified in the student's IEP developed under the IDEA, or a plan developed under Section 504." (emphasis added.) Thus, although there is a direct reference to compliance with the IDEA and Section 504, the USDOE, in using the language to the greatest extent possible does provide some hope that these highly unusual and difficult times will be considered when determining whether students with disabilities were served appropriately during a COVID-19 school closure. 

NOTE: IEP Team Meetings: To date, federal and state guidance has been largely silent on the impact COVID-19 closures will have on IEP meeting timelines other than for IEP meetings related to assessments, other than noting that IEP meetings do not have to be conducted in person. To follow current best practices, school districts should continue to conduct IEP meetings in accordance with IDEA and state law timelines, and in accordance with public health recommendations, including utilizing telephone and video conference options and practicing appropriate social distancing. All statutorily required team members, however, should participate in the meeting in order for the meetings to meet requirements for legal compliance.

IV.    Takeaways on Developing Distance Learning

  • In order to receive state funding, school districts should plan for and engage with students in distance learning opportunities during the COVID-19 school closures.
  • Distance learning is defined as student and teacher being in different locations but interacting through high and low tech means such as on-line learning platforms with teacher interaction, online curriculum for student to access at home, online curriculum in labs and classrooms consistent with social distancing, paper packets, and in person settings with social distancing.
  • In developing a distance learning plan, a school district may consider conducting a technology needs assessment to examine its student population and whether students will have access to required technology needed for the distance learning plan.  If there are access issues (e.g. students do not have the required technology to access learning), then the distance learning plan should be modified to ensure that all students have access to program being provided.
  • School districts appear to have broad discretion to decide what distance learning plan will work best for their student population.
  • School districts should develop distance learning development teams that represent different curriculum areas and grade levels. For example, a school district could designate elementary, middle/intermediate, and high school distance learning development teams.
  • Students participating in distance learning should be expected to participate to the extent possible, and according to information provided by the CDE in its March 18, 2020 Webinar, attendance should be taken for compulsory education purposes but not for apportionment purposes.
  • The distance learning plan should be developed in a way that ensures that all students have access to the plan.
  • A distance learning plan is not a one-size fits all approach. Although the guidance discusses distance learning through an e-learning model, it does not appear to require such a model.  Rather, each school district will need to assess its own school population to determine its own distance learning approach that ensures equal educational opportunities for its own unique student population.
  • Transportation funding can be used creatively to support distance learning. For example, transportation and transportation staff can be used to transport meals, provide internet hotspots, and delivery of instructional materials.

Takeaways for Distance Learning for Students with Disabilities

  • To the extent school districts provide distance learning to students during this time of COVID-19 school closure, school districts are required to also provide an education to students with disabilities.
  • In providing for distance learning to students with disabilities, school districts should, to the greatest extent possible, provide an education that comports with a student's IEP and allows the student to make progress on his or her goals and objectives, although using a different program delivery model. This may be accomplished through consultation between a student's case manager, teachers and related services providers upon reviewing the learning options provided by the school district during the period of school closure.
  • Ensure general and special education teachers are aware of how accommodations and modifications listed in a student's IEP or Section 504 Plan can be implemented within the distance learning model.
  • Students who are placed at nonpublic schools or residential placements should continue in those placements so long as they remain open.
  • School districts should notify parents of how their child's special education program and related services will be provided during the period of school closure. Provide a copy of Parents Rights and Procedural Safeguards with this notice.
  • School districts should continue to prioritize following local public health recommendations, including "sheltering in place" when required.

Takeaways for English Learners

  • Distance learning plans developed by a school district should include language development instruction and services for EL students.
  • School district should have a plan in place to evaluate an EL's progress toward language acquisition when school resumes.
  • If a school district's evaluation demonstrates a negative impact from distance learning on progress toward language acquisition, then the school district should provide additional services and supports to account for the negative impact caused by the school closure.
NOTE: This is a summary only and not legal advice.We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances.
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