State and Federal Agencies Issue More Guidance Interpreting IDEA Requirements as Schools Return to In-Person Services
By Heather M. Edwards
On September 30, 2021, the U.S. Department of Education, Office of Special Education and Rehabilitative Services (OSERS) issued a Question-and-Answer document interpreting requirements of the IDEA considering the challenges of the COVID-19 pandemic as schools return to in-person services. (Return to School Roadmap: Development and Implementation of Individualized Education Programs in the Least Restrictive Environment under the Individuals with Disabilities Education Act) The new guidance document includes topics such as considering the child’s need for compensatory services and use of alternative means such as videoconferences or conference calls to hold IEP team meetings and due process proceedings even when schools have returned to in-person instruction.
In addition, on September 1, 2021, the California Department of Education issued guidance for local educational agencies in identifying factors to consider when determining impacts to learning or services related to COVID-19 school disruptions, including examples of strategies to monitor pupil progress for the development of IEPs. (Conducting Individualized Determinations of Need) The guidance includes, among other things, questions for IEP teams to consider when determining services and support needs for students.
Also, on August 24, 2021, the Office of Special education Programs (OSEP) issued guidance encouraging local educational agencies to review their current child find policies and procedures to ensure they remain effective in light of the impact of the COVID-19 pandemic on students. (Return to School Roadmap: Q&A on Child Find Under Part B of the Individuals with Disabilities Education Act). Specifically, OSEP recommends that LEAs consider conducting additional screenings of children whose academic and behavioral needs may require an evaluation to determine eligibility for special education and related services. OSEP also recommends that LEAs find ways to increase awareness of special education supports for students by providing information about the screening process in settings frequented by parents and conducting social media campaigns.
While various informal guidance from state and federal agencies that oversee special education and related services is not legally binding, hearing officers and courts often rely upon this type of guidance as persuasive authority in analyzing specific cases. LEAs may want to review the information contained in such guidance to seek clarity regarding existing requirements under the law.
By Eric E. Stevens, Attorney at Law
At the start of the COVID-19 pandemic, Governor Gavin Newsom issued an Executive Order relaxing the Brown Act’s requirements and paving the way for the widespread adoption of teleconferenced or “virtual” board meetings in which members of a public board participate from a remote location by audio, video, or both. The Legislature has now formally amended the Brown Act though AB 361 to make it easier to continue holding teleconferenced meetings under “abbreviated teleconferencing procedures” through the end of 2023. However, AB 361 creates new conditions for any public agency trying to use these relaxed teleconferencing procedures.
The “default” for teleconferenced meetings is almost the same as it was pre-COVID-19:
- Board members’ teleconference locations must be disclosed and publicly noticed.
- Board members’ teleconference locations must be accessible to the public.
- Agendas must be posted in advance at all teleconference locations.
- A quorum of the board’s members must be physically present at publicly noticed locations within the agency’s jurisdiction where the public can observe the board meeting and offer public comment.
- All votes taken during a teleconferenced meeting must be by rollcall of the present board members.
Teleconferenced meetings were relatively rare before COVID-19 because these requirements meant that if a board member wanted to teleconference into the meeting from home, the board member’s home address needed to be publicly disclosed with the meeting agenda and opened up to the public during the meeting.
A public agency can always follow these traditional requirements and stay compliant with the Brown Act.
However, AB 361 lets a local public agency’s board continue to hold teleconferenced meetings from October 1, 2021, to December 31, 2023, without disclosing and providing public access to teleconference locations or a physical meeting site in three circumstances:
- The meeting is held during a proclaimed state of emergency, and state or local officials have imposed or recommended measures to promote social distancing;
- The meeting is held during a proclaimed state of emergency and the meeting is held for the purpose of determining, by majority vote, whether as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees; OR
- The meeting is held during a proclaimed state of emergency and the board has determined, by majority vote, that, as a result of the emergency, meeting in person would present imminent risks to the health or safety of attendees.
As of this writing, the state of emergency declared by the Governor remains and state officials have “imposed or recommended measures to promote social distancing,” so every public agency finds itself in the first circumstance. If in the future a board finds itself in a proclaimed state of emergency, but state or local officials have not recommended measures to promote social distancing, the board can invoke these teleconference meeting exceptions by voting that meeting in person would present imminent risks to the health or safety of attendees. These changes to the Brown Act are brand new and untested, but this could potentially apply during states of emergency declared due to natural disasters like wildfires.
AB 361 imposes some new conditions that did not exist under the Governor’s expiring Executive Order. These conditions only apply where a board is trying to hold a teleconferenced meeting without satisfying the “default” rules highlighted at the beginning of this Legal Alert.
The principal condition added by AB 361 is that, so long as a state of emergency declaration remains active, or state or local officials have imposed or recommended measures to promote social distancing, a board must make monthly findings by majority vote that:
- The board has reconsidered the circumstances of the state of emergency, AND
- The state of emergency continues to directly impact the ability of members to meet safely in person OR state or local officials continue to impose or recommend measures to promote social distancing.
These changes go into effect October 1, 2021, but a board may retroactively make these required findings within 30 days of its first teleconferenced meeting post-October 1. These findings can take the form of a resolution that cites to this new requirement in Government Code section 54953(e)(3) and “finds,” “makes,” or “adopts” the facts above. Findings are factual conclusions, and additional explanation to support those factual conclusions strengthens them in the event of any legal challenge.
Once a board adopts a resolution that makes these required findings, the board must reconsider the issue and readopt the required findings every 30 days to continue to hold teleconferenced meetings under these relaxed rules.
It is helpful to remember that these requirements only apply if a board’s meetings are not in compliance with the Brown Act’s traditional requirements.
AB 361 also adds conditions related to disrupted broadcasts and public comment by phone or video during teleconferenced meetings:
- If the meeting broadcast is disrupted, the board shall take no further action on items on the meeting agenda until the broadcast is restored and members of the public can again view or listen to the meeting, and offer public comment to the board.
- The board cannot require public comments to be submitted in advance of the meeting and must provide an opportunity for public comment in real time.
- While usually members of the public cannot be required to register as a condition of making a public comment, a public agency does not violate the Brown Act if a third-party internet website or online platform used for public comment requires users to register to use the service.
- Where a board uses timed public comment periods, the comment periods must remain open for members of the public to register through a call-in or video service and be recognized until the timed comment period has elapsed.
- Where a board allows public comment on separate agenda items without a maximum time limit for the public comment period, a “reasonable amount of time” must be allowed for members of the public to register through a call-in or video service and be recognized.
Again, these conditions regarding disrupted meetings and public comment periods only apply to teleconferenced meetings using the relaxed teleconferencing rules available under AB 361.
As a specific example, if a board convenes in-person within the agency’s boundaries for a properly agendized meeting and makes that meeting location available to the public to observe the meeting and offer public comment in-person, the board meeting is in compliance with the Brown Act’s usual, pre-COVID-19 requirements. If a video stream and video comment option is simultaneously offered to the public, the board may continue to conduct business even if that video stream is disrupted because the Board was not taking advantage of AB 361’s relaxed teleconferencing procedures.
Finally, remember that traditional Brown Act requirements remain regardless of whether you are taking advantage of AB 361:
- Public agencies must still give advanced notice of each regular or special governing board meeting by publicly posting meeting agendas.
- Members of the public must still have access to the meeting, the agenda must still provide an opportunity for members of the public to address the board directly, and the agenda must still identify the means by which members of the public can attend the meeting and comment, whether in-person or via a call-in option or an internet-based service option.
For further questions, please do not hesitate to contact us at Girard, Edwards, Stevens & Tucker LLP.