Monthly Archives:' August 2020

New Guidance (and Permission) for Small-Group, In-Person Services When General, In-Person Instruction is Still Prohibited.

Author: Eric Stevens, Attorney at Law

Summary:

On August 25, 2020, the California Department of Public Health issued “Guidance for Small Cohorts/Groups of Children and Youth” laying out the conditions under which K-12 schools may deliver small group, in-person services.  The conditions are relatively straightforward and they are summarized below, but whether the “guidance” is suggestive or mandatory and how the guidance fits into the larger scheme for school reopening is less clear.

However, Governor Newsom simultaneously issued “Providing Targeted, Specialized Support and Services at School” to help clarify what the new CDPH guidance means for schools.  When the August 25 CDPH guidance and the Governor’s clarifications are read together, it becomes clear that K-12 schools are permitted (but not required) to deliver in-person targeted, specialized services (like special education services) while the July 17 Framework for reopening schools prohibits them from offering general in-person instruction.

As a reminder, the July 17 Framework prohibits in-person instruction while a school’s county is on the state’s County Monitoring List and until the county has been off the monitoring list for 14 consecutive days, with a possible exception for elementary grades if the school district or charter school receives a waiver from its local public health officer.

While a school is still prohibited from offering general in-person instruction, it may choose to offer “small group, in-person services” so long as the school follows (1) CDPH’s August 25 guidance and (2) any local public health directive that is more restrictive than the state’s July 17 Framework and the COVID-19 Industry Guidance for Schools and School-Based Programs.  A school district or charter school does not need express permission from local public health officials to offer small-group services under the August 25 guidance.

Schools considering offering in-person services should carefully read the August 25 guidance and the Governor’s clarifications, but in summary, schools may deliver in-person services to small, isolated cohorts of students, with the following restrictions and exceptions:

  • Cohort size must be limited:
    • No more than 14 children and youth in the cohort, even when all children are not participating at the same time.
    • No more than two supervising adults.
    • Requirements for adult to child ratios continue to apply for licensed child care programs.
    • Cohorts may be subdivided, as needed, into subgroups of children and youth from the same cohort, as long as the 14-to-2 ratio is not exceeded.
  • Cohorts must be isolated from other cohorts:
    • Prevent interactions between cohorts, including interactions between staff assigned to different cohorts.
      • Adults should be assigned to one cohort and work solely with that cohort.
      • Short-term substitutes are allowed, but should only work with one cohort per day.
      • Meetings among staff from different cohorts should be conducted remotely or with face coverings and appropriate social distancing.
    • Assign children and youth who live together or carpool together to the same cohort, if possible.
    • Avoid moving children and youth from one cohort to another, unless needed for a child’s overall safety and wellness.
    • Cohorts must be kept separate from one another for special activities such as art, music, and exercise. Stagger playground time and other activities so that no two cohorts are in the same place at the same time.
  • One-to-one specialized services are a limited exception:
    • One-to-one specialized services can be provided to a child or youth by a support service provider that is not part of the child or youth’s cohort.
    • “Specialized services” includes but is not limited to occupational therapy services, speech and language services, and other medical, behavioral services, or educational support services as part of a targeted intervention strategy.
    • Services must be provided consistent with the COVID-19 Industry Guidance for Limited Services.

The Governor’s clarifications state that which students to target for in-person services and what services to provide are individualized decisions for each school district or charter school.  However, the Governor goes on to state that “Students with disabilities should be prioritized by the LEA and school for receiving targeted supports and services. In addition, English learners, students at higher risk of further learning loss or not participating in distance learning, students at risk of abuse or neglect, foster youth and students experiencing homelessness may also be prioritized.”  Notably, the Governor includes assessments related to IEPs among that list of potential specialized services that may be provided in-person. Specifically, the services “include but are not limited to occupational therapy services, speech and language services, and other medical services, behavioral services, educational support services as part of a targeted intervention strategy or assessments, such as those related to English learner status, individualized educational programs and other required assessments.”

Finally, this permission and the associated conditions for providing services in isolated cohorts only applies while a school is otherwise unable to offer general in-person instruction under the July 17 Framework.  Once a school is permitted to reopen, it should continue to follow the COVID-19 Industry Guidance for Schools and School-Based Programs, and for Limited Services.  However, as with so many things related to COVID-19, we are in a fluid, ever-changing situation.  Existing guidance, clarifications, and requirements are subject to change.