By: Anisa Pillai
On February 25, 2021, a San Francisco Superior Court issued a ruling authorizing Cal/OSHA to continue to enforce its Emergency Temporary Standard Regulations (“ETS Regulations”). This ruling was one of a few such rulings testing the applicability of state guidance regarding COVID-19 potentially impacting schools and other employers.
The ETS Regulations apply to most California employees and provide instructions to employers regarding the steps they must take to reduce and prevent the spread of COVID-19 in the workplace.
On November 30, 2020, after extensive public comment, Cal/OSHA adopted new regulations applying to all employees and places of employment with more than one employee who does not have contact with other individuals, employees working from home, and employees who are covered under the limited Aerosol Transmissible Diseases standard which only applies to specified health care, correctional, and other specialized settings. Among other measures, the ETS Regulations:
- Require employers to establish a COVID-19 Prevention Program which, among other things, must address communicating information to employees about COVID-19 and investigating and responding to COVID-19 cases in the workplace;
- Require employers to provide COVID-19 testing to employees at no cost during work hours under specified circumstances;
- Require employers to exclude from the workplace all employees who have, or have been exposed to, COVID-19 for a period of 10-14 days consistent with current public health orders. Employers must maintain employee earnings, seniority, and all other employee rights and benefits during this exclusion period unless the exposure is shown to be non-occupational;
- Require employers to provide twice weekly COVID-19 testing when there are 20 or more COVID-19 cases within an exposed workplace within a 30 day period;
- Require employers who provide employees with transportation to and from work to prioritize shared transportation assignments to minimize exposure to COVID-19 in the same manner as they do shared housing.
Prior to promulgating the above ETS Regulations, Cal/OSHA did not have a specific enforcement standard that projected the majority of workers from COVID-19 in the workplace.
In December 2020, the plaintiffs, representing the retail and agricultural industries, filed suit in the Superior Court of California, County of San Francisco, seeking to restrain Cal/OSHA from enforcing the ETS Regulations. Plaintiffs argued that the ETS Regulations should never have been promulgated in the first place because, among other reasons, Cal/OSHA lacked the authority to adopt such regulations on an emergency basis and ETS Regulations violate due process.
The Court rejected the plaintiff’s arguments and denied their application for a preliminary injunction. The Court stated, among other things, “…the balance of interim harms and the public interest in curbing the spread of COVID-19 and protecting worker and community health weigh heavily in favor of the continued implementation and enforcement of the ETS Regulations.”
The Court further stated that “with the single exception of restrictions on attendance on religious services, which present unique constitutional considerations, no federal or state court in the country has blocked emergency public health orders intended to curb the spread of COVID-19, and the illnesses, hospitalizations, and deaths that follow in its wake. This Court will not be the first. Lives are at stake.”
The Court found that there was nothing novel about the ETS Regulations requirement that employers must continue to provide pay and benefits to workers who are excluded from the workplace due to COVID-19, and that Cal/OSHA has enforced similar requirements when employees are excluded from the workplace for other reasons such as exposure to lead or toxic substances. The Court also found that Cal/OSHA has the “broad regulatory authority” to mandate COVID-19 testing of employees. Finally, as discussed above, the Court found that the public health risk posed by enjoining Cal/OSHA from enforcing the ETS Regulations outweighed the financial cost to the employer to comply with the regulations.
School Specific COVID-19 Rulings
While COVID-19 regulations in the employment environment are unlikely to change any time soon, regulations in the school setting are constantly evolving. For example, on March 15, 2021, a San Diego County judge issued a temporary restraining order blocking the state of California from applying its January framework to schools reopening for in-person instruction. The January framework prohibited middle and high schools from reopening while their county was in the purple tier and required schools to have at least four feet of distance between students in a classroom. In other words, a county’s tier status cannot prevent schools from reopening. The order, which applies statewide, is being appealed.
Additionally, in February a San Diego County Court issued an order prohibiting the county from preventing middle and high school students from participating in youth sports that are operating under the same or similar COVID-19 protocols being enforced by professional and college teams. The Court, in making its ruling, stated that the rates of transmission in high school sports are equal to or less than those observed in recent studies involving major league baseball and national football, and that children are less likely to develop severe illness or die from COVID-19 and are less commonly infected with the virus.
The ETS Regulations are in place through September 2021. As such, employers should continue to comply with the ETS Regulations and ensure that their policies and procedures are consistent with said regulations.
Additionally, due to the constantly changing landscape of the rules regarding in-person instruction on both the state and county level, LEAs should keep informed of any new changes and ensure that they are in compliance with the most recent regulations.
Author: Omer A. Khan, Attorney at Law
Many employers are asking whether they can require employees to get vaccinated against COVID-19. The answer appears to be a qualified “yes.”
The Equal Employment Opportunities Commission (“EEOC”), the federal agency responsible for enforcing federal employment laws, issued Guidance regarding the ways in which employers’ mandatory COVID-19 vaccination policies implicate employee rights under various federal statutes. The state of California has not passed legislation or issued regulatory guidance to address the issue, but the emerging consensus is that employers, including public employers, may require employees to get vaccinated against COVID-19 with certain exceptions and limitations.
- Exceptions to a Mandatory COVID-19 Vaccination Policy
The EEOC Guidance notes that individuals with a disability have the right to refuse vaccination on account of their disability under the Americans with Disabilities Act (“ADA”). Additionally, individuals with sincerely-held religious beliefs or practices can also refuse vaccination under Title VII of the Federal Civil Rights Act. These individuals are entitled to reasonable accommodations in the workplace as long as such accommodations do not pose an undue hardship on the employer.
Absent an undue hardship, an individual who is not vaccinated for these reasons cannot be excluded from the workplace unless there is no way to provide a reasonable accommodation. Permitting remote work or modifying job duties could be a reasonable accommodation, but whether a potential accommodation is “reasonable” under the ADA is a very fact-specific analysis that depends on the workplace and the employee’s unique circumstances. For help on finding reasonable accommodations, the Guidance recommends consulting the Job Accommodation Network (“JAN”) website as a resource for different types of accommodations at www.askjan.org. JAN’s materials specific to COVID-19 are at https://askjan.org/topics/COVID-19.cfm.
Additionally, under the ADA, employers cannot implement a policy that “screens out or tends to screen out an individual with a disability” unless it can show that the individual has a disability that poses a “significant risk of substantial harm” to the employee or to others. To justify the requirement, employers are required to conduct an individualized assessment of four factors in determining whether a direct threat exists: the duration of the risk; the nature and severity of the potential harm; the likelihood that the potential harm will occur; and the imminence of the potential harm.
Also note that the decision to require employee vaccinations could require collective bargaining under California law, either as a negotiable term and condition of employment or as to impacts and effects of a non-negotiable decision.
- The ADA Imposes Requirements on Employers Regarding the Vaccination Process.
The Guidance notes that, while administration of a vaccination is not a medical examination, pre-screening vaccination questions may implicate ADA provisions on disability-related inquiries because the questions could elicit information about a disability. As a result, employers who administer vaccines or require employees to get vaccinated must ensure any vaccination questions are job-related and consistent with business necessity.
Additionally, any medical information that an employer obtains about an employee pursuant to a vaccination policy must remain strictly confidential. This medical information must be kept in the employee’s medical file, separate from the employee’s personnel file. Medical information also includes the fact that an individual has requested, or is receiving, a reasonable accommodation.
If you are considering a policy to mandate COVID-19 vaccines for employees, there are a number of federal and California laws that require attention. In order to navigate the overlapping requirements, please contact our firm for an individualized assessment and recommendation.
Author: Michael Tucker, Attorney at Law
On October 12, 2020, the Office of Administrative Hearings ruled that a California school district denied a high school student a Free Appropriate Public Education (FAPE) when the district provided the student only 80% of the student’s IEP-required specialized education. (Long Beach Unified School District, 120 LRP 33840.)
Student qualified for special education under the category of “intellectually disabled.” Student’s Individualized Educational Program (IEP) included five hours of specialized academic instruction. Like most California schools, the district closed its schools on March 16, 2020 due to the COVID-19 pandemic. On April 23, 2020, District began offering students 3-4 hours per day of blended teacher-directed learning and self-directed learning.
However, from the date of closure until March 22, 2020, District did not provide Student, or any other student, with any instruction. From March 23, 2020 until April 9, 2020, District provided Student with some distance learning but that did not include any direct teaching or any related services from Student’s IEP.
The blended learning eventually provided to student consisted of 3-4 hours per day of direct online instruction and self-directed learning. Of which, 1.5 hours were dedicated to direct teacher instruction from the Student’s moderate to severe special day class curriculum, and the rest of the time the student would complete activities and work assigned by the teacher. The provided services represented about 80% of the amount of services required by Student’s IEP. The Administrative Law Judge (ALJ) also pointed out that the District did not begin implementing Student’s IEP until the 19th day of distance learning.
Generally only material failures to implement an IEP constitute an IDEA violation. (Van Duyn v. Baker School Dist. (2007) 502 F. 3d 811, 822.) “A material failure occurs when there is more than a minor discrepancy between the services a school provides to a disabled child and the services required by the child’s IEP.” (Id.) “The materiality standard does not require that the child suffer demonstrable educational harm in order to prevail.” (Id.)
Here, the ALJ was not convinced by District’s arguments that COVID-19 related challenges prevented the District from implementing the IEP in its entirety. Instead, the ALJ ruled that providing 80% of the required services represented a material failure to follow Student’s IEP. Notably, the ALJ determined that the alternative delivery model which included both teacher-directed and self-directed learning was appropriate for Student, it just was not enough. As such, the ALJ awarded Student compensatory education.
All Local Educational Agencies (LEA) have faced challenges regarding providing special education and related services to students without being able to provide in-person instruction. However, as this case suggests, relying on those challenges to excuse IEP implementation may come at the risk of violating a student’s right to FAPE. Specifically, the ALJ noted “while unavoidable circumstances prevented [District] from fully implementing [Student’s]…IEP, the IDEA included no exceptions to implementation for school closures caused by pandemics or governmental directives.”
It should be noted that the ALJ specifically looked at the number of hours required in Student’s IEP compared to what was being provided by the District during distance learning and considered both synchronous and asynchronous delivery models. LEAs should take from this that every effort should be made to provide students with disabilities with the services specifically required an IEP and have evidence to support that any alternative delivery models are providing the services as required.
By: Anisa Pillai
On December 30, 2020, Governor Newsom released a framework for bringing students back to school for in-person instruction. According to the Governor, “Developed in partnership with the Legislature, the Administration’s plan focuses on ensuring careful implementation and building confidence by supporting schools to bring back the youngest children (TK-2) and those who are most disproportionately impacted first, then phasing in other grade levels through the spring, as conditions allow.”
Governor Newsom further stated that this plan to resume in-person instruction is based upon growing evidence that the right precautions can prevent the spread of COVID-19 in schools, especially elementary schools. Distance learning will continue to remain an option for parents and students.
California’s Safe Schools for All Plan is built upon four pillars:
(1) Funding: $2 billion will be made available in January for the safe reopening of schools beginning in February, with priority given to TK through 2nd grade students and those who are disproportionately impacted.
(2) Safety & Mitigation: The Administration will focus on safety and mitigation, including the following:
- Testing: The Administration will support frequent COVID-19 testing for all school staff and students, including weekly testing at schools in communities with high rates of transmission.
- PPE: All students and staff are required to wear masks, and surgical masks will be recommended for school staff. The Administration will distribute millions of surgical masks to schools at no cost. The Administration has also enabled schools to leverage state-negotiated master contracts for PPE to reduce costs and streamline supply chains.
- Contract Tracing: Schools will continue to be on-boarded onto the School Portal for Outbreak Tracking (SPOT) and members of the state contact tracing workforce will be deployed to improve communication with schools.
- Vaccinations: School staff will be prioritized in the distribution of vaccines through the spring of 2021.
(3) Oversight & Assistance: The Safe Schools for All Team will be a cross-agency team composed of staff from CDPH, Cal/OSHA, and educational agencies, and will provide hands-on support to schools.
(4) Transparency & Accountability: A state dashboard will enable all Californians to see their school’s reopening status and a web-based hotline will allow parents and school staff to report concerns to the Safe Schools for All Team.
Local educational agencies (LEAs), especially those serving TK-2nd grade, should begin to monitor the development and rollout of the Safe Schools for All Plan once schools resume in 2021 to ensure that in-person instruction resumes pursuant to this new framework. While many questions remained unanswered, the Governor’s plan appears to address some concerns related to reopening.
Author: Anisa Pillai, Attorney at Law
On May 6, 2020, the U.S. Department of Education (USDOE) released its long-anticipated final regulations under Title IX of the Education Amendments Act of 1977 (Title IX), which govern sexual harassment and sexual assault policies on K-12 and college campuses.
The Trump Administration withdrew Obama-era guidance on Title IX in 2017 and published proposed regulations in November 2018. Subsequently, the USDOE’s Office for Civil Rights (OCR) has spent the last year and a half reviewing over 124,000 public comments and holding meetings with various interested parties before releasing the final regulations in May 2020. The final regulations took effect on August 14, 2020.
Title IX prohibits discrimination on the basis of sex, including sexual harassment, in education programs or activities receiving federal financial assistance. The new regulations will be the first Title IX guidance to have the force of law; rules issued by OCR under the Obama Administration in 2011 and 2014 were administrative guidance. The new rules make several changes to the ways in which K-12 schools must handle sexual harassment and sexual assault claims. The major changes are summarized below.
Changes the Definition of Sexual Harassment
The new rules define sexual harassment as:
- Quid pro quo harassment;
- Unwelcome conduct that a reasonable person would find so severe, pervasive, and objectively offensive that it denies the victim equal educational access; or
- Sexual assault; dating violence; domestic violence; or stalking.
Obama-era guidance explicitly included verbal conduct in the definition of sexual harassment, such as making sexual comments or jokes, spreading rumors, or creating emails or websites of a sexual nature, and schools were encouraged to investigate sexual harassment before such conduct became severe or pervasive. The new rules appear to reject the idea that conduct may not be severe and pervasive but may contribute to creating a broader hostile environment and, as such, qualify as sexual harassment.
Responding to Complaints of Sexual Harassment
The new rules change a school’s obligation to investigate complaints. Pursuant to Obama-era guidance, schools were required to respond to sexual harassment complaints of which they had actual knowledge or they should have been reasonably aware. The new rules only require a school to respond when they have actual knowledge of sexual harassment. However, the new rules establish that all K-12 school staff are mandated Title IX reporters in that they are required to report incidents of sexual harassment to the appropriate school authorities for investigation.
Location of Sexual Harassment
The new rules require schools to respond to sexual harassment that occurs “in the school’s educational program or activity” which includes “locations, events, or circumstances over which the school exercised substantial control over the respondent and the context in which the sexual harassment occurred.” Under the Obama-era guidance, schools were required to process all complaints of sexual harassment regardless of where the conduct occurred, to determine whether the conduct had a continuing effect on the campus community. Notably, the new rules only apply to conduct that occurs in the United States, thereby leaving students in study abroad programs without Title IX protections.
The new rules require schools to immediately provide “supportive measures” to students, with or without a formal complaint. These supportive services include counseling, extensions of deadlines or other course-related adjustments, modifications of class or work schedules, the provision of campus escort services, mutual restrictions on contact between the parties, changes in work or housing location, leaves of absence, and increased security and monitoring on campus. To compare, Obama-era guidance required schools to provide “comprehensive, holistic victim services” such as free medical services and academic support such as tutoring. The prior rules also contained remedies for the broader student population such as counseling and mental health services.
Hearings Optional for K-12 Schools
A K-12 school may hold live disciplinary hearings in sexual assault misconduct cases and schools may allow the cross-examination of witnesses. While Obama-era guidance did not prohibit live hearings or cross-examination, the guidance did not encourage such practices. K-12 schools are allowed to make the hearing procedures less formal than hearings conducted by colleges and universities as long as schools provide an equal opportunity to both parties to present evidence. Schools must give each party an opportunity to submit written questions to the other party; provide each party with the answers; and allow for additional follow up questions from each party.
Establishes Detailed Grievance Procedures
The new rules establish detailed grievance procedures and various protections for individuals accused of sexual harassment or assault. Specifically, among other protections, the new rules require schools to presume that the respondent is innocent until a determination is made at the conclusion of the grievance process. The new rules also require schools to provide written notice of the allegations to both parties (and their parents) upon receipt of a formal complaint, and require schools to provide a copy of the investigative report, which fairly summarizes the relevant evidence, before the hearing. The new rules also provide each party with an equal opportunity to present evidence and appeal the school’s decision. Obama-era guidance provided less detailed grievance procedures which allowed individual schools to establish procedures of their own. Under the Obama-era guidance, schools were authorized to place heavier pre-determination restrictions on the individual accused of sexual harassment, such as changing the respondent’s schedule. The new rules also authorize schools to choose whether to apply either the “preponderance of the evidence” standard, which was required under the Obama-era guidance, or the “clear and convincing evidence” standard, which creates a higher burden of proof for victims. Schools are required to use the same standard for all complaints, including complaints that involve school staff.
The new rules make several significant changes to Title IX. As such, a local educational agency (LEA) should consider reviewing these changes to determine whether the LEA must revise its own policies on sexual harassment and/or sexual assault to reflect these new rules.
Author: Omer A. Khan, Attorney at Law
Recently, the Office of Administrative Hearings (OAH) has held in two cases that a student was denied a free appropriate public education (FAPE) because the Local Educational Agency (LEA) changed the student’s educational program that did not adequately implement Student’s IEP. On August 24, 2020, OAH decided the Los Angeles Unified School District case (Case No. 2020050465) and followed up with the Norris School District case (Case No. 2020010423) on September 2, 2020.
In Los Angeles Unified School District, the 22-year old student was eligible for special education under the category of autism, with additional impacts from her intellectual disability and deficits in speech and language, social-emotional functioning, and adaptive behaviors for independent living. Student’s last agreed upon IEP provided a nonpublic school placement for the student, which included special education services for 1,545 of the 1,950 minutes Student attended school each week, plus 60 minutes per week of small-group speech and language services. Forty percent of Student’s weekly schedule – 630 minutes – was devoted to community-based instruction, and 240 minutes per week of hands-on vocational skills training. The student’s speech and language services were provided in either a class or community-based environment to aid her expressive and pragmatic language skills.
On March 19, 2020, Student’s IEP was implemented through the District’s distance learning program due to school closures. As a result, Student received half of the amount of instructional minutes required by her IEP and lost 116 hours of hands-on community-based instruction and vocational training. Parent alleged that this inadequate implementation of Student’s IEP was a denial of FAPE and sought as a remedy that ability for Student to return to the nonpublic school for an additional semester once in-class instruction resumes.
The hearing officer referred to guidance published by the United States Department of Education Office of Special Education and Rehabilitative Services (OSERS) and the California Department of Education (CDE) to LEAs for how to implement special education during the COVID-19 lockdowns. The hearing officer noted that, although the OSERS guidance promised to “offer flexibility where possible,” the guidance did not substantively rescind an LEA’s responsibility to implement a student’s IEP, nor did it create a safe harbor for LEAs who make an attempt to provide special education services through distance learning. Additionally, the guidance published by CDE encouraged the use of distance learning, and did not indicate that there was any waiver or relaxation of existing IDEA or Education Code requirements for providing FAPE to students with disabilities.
As a result, the hearing officer concluded that LAUSD’s services fell materially short of adequately implementing the student’s IEP by not providing student the number of minutes of instruction required by Student’s IEP, and the type of instruction required for the student to make meaningful progress on her vocational, social skills, community skills, behavioral, and transition goals. Under these unique circumstances, the Student was not entitled to an IEP meeting to consider the need for compensatory education services or to return for a semester at the nonpublic school because the student had “aged out” of special education by the time the decision was issued. Instead, the hearing officer ordered the District to provide 40 hours of post-secondary transition counseling to assist the parent with coordinating with the reginal center, Department of Rehabilitation, and other agencies to locate an adult day program and/or employment for Student.
In Norris School District, Student was on an IEP that provided for 6,300 out of 6,420 monthly minutes in the general education classroom, 160 minutes a month of one-to-one specialized academic instruction in the general education classroom, and 120 minutes a month of speech and language services in a separate classroom. In this case, the LEA ultimately was forced to shut down instruction completely for 28 school days between March 28, 2020 and May 8 2020. The student was not provided with any direct instruction, whether in-person or virtual. Nor did the LEA provide Student with any in-person or virtual speech therapy. Student was provided with distance learning plan packets (which included worksheets and other tools) and weekly contact with Student’s teachers and service provider. The parent alleged, among other things, that Student was denied FAPE during school closures.
The hearing officer determined that Student was denied FAPE during school closures because (a) the District did not discuss options with Parents or the possibility of offering Parent training to help deliver the services to the student with virtual assistance by staff, (b) the District’s prior written notice regarding services during school closures was not specifically individualized to the Student or explained how the District proposed to change or modify the delivery of Student’s IEP, and (c) the District should have held an IEP meeting to consider alternative methods of delivery of Student’s services given that the parents were struggling to deliver all of the materials provided by the District. The hearing officer reasoned that there were no exception to implementation of an IEP for physical school closures caused by pandemics or other directives to close schools
During the COVID-19 lockdowns, LEAs have had to significantly adapt their special education programs. These due process hearing decisions provide helpful reminders that LEAs should consider holding IEP meetings where parents may be struggling to provide support at home and consider whether additional parent training is warranted. Another important takeaway is that LEAs must find ways to implement a student’s IEP both quantitatively (number of minutes of instruction, activities, etc.) as well as qualitatively (addressing all of the student’s needs as written in their IEP) to the greatest extent possible.
For further guidance on small group, in-person services, see http://girardedwards.com/new-guidance-and-permission-for-small-group-in-person-services-when-general-in-person-instruction-is-still-prohibited/
New Guidance (and Permission) for Small-Group, In-Person Services When General, In-Person Instruction is Still Prohibited.
Author: Eric Stevens, Attorney at Law
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.
- Prevent interactions between cohorts, including interactions between staff assigned to different cohorts.
- 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.
Author: Anisa Pillai, Attorney at Law
Senate Bill (SB) 98, the education omnibus budget trailer bill, which was chaptered on June 29, 2020, makes several changes to the laws governing the provision of special education to children in California in response to the COVID-19 global pandemic.
Individualized Education Programs
Specifically, SB 98 made changes to Education Code section 56345 which governs the contents of and requirements for individualized education programs (IEP). An IEP is a written document that is developed for each public school student who is eligible for special education. An IEP must be reviewed annually and developed in accordance with both federal and state law. Pursuant to Education Code section 56345, an IEP must include various elements, including, but not limited to, a statement regarding a child’s present levels, a statement of measurable annual goals, a description of the manner in which the progress of the pupil toward meeting the annual goals will be measured, and a statement of the special education and related services and supplementary aids to be provided to the child.
SB 98 now requires an IEP to include a description of the means by which the IEP will be provided under emergency conditions, including fire, flood, epidemic, and earthquake, in which instruction or services, or both, cannot be provided to the pupil either at the school or in person for more than ten school days.
Pursuant to SB 98, this emergency description must include the following information:
- Special education and related services
- Supplementary aids and services;
- Transition services, as defined in Education Code 563451; and
- Extended school year services pursuant to 34 C.FR. 300.106
SB 98 requires local educational agencies (LEAs) to take into account public health orders when designing and implementing these emergency descriptions. Furthermore, this new requirement applies to the development of an initial IEP or the next regularly scheduled revision of an IEP.
Extended School Year (ESY)
Section 96 of SB 98 specifies that an LEA may claim apportionment for distance learning during summer 2020. Specifically, pursuant to Section 96, an LEA may claim apportionment for ESY services for pupils with disabilities offered through distance learning for the summer 2020 (defined as the period of time between the end of an LEA’s 2019-2020 academic year and June 30, 2020). LEAs may claim apportionment under the following conditions:
- The time value of the pupil’s work products shall be determined by the certified teacher assigned to the child for ESY and shall be equivalent to the day requirements specified in 5 C.C.R. 3043, and the equivalent in time value to a minimum day pursuant to Education Code §§ 46112, 46113, 46117 and 46141, for each day that attendance is claimed, unless otherwise specified in a child’s IEP to meet the child’s unique needs; and
- The pupil’s work must be aligned with the goals in the pupil’s IEP to promote measurable progress and completed by the established due date.
As special education laws and guidance change rapidly due to the COVID-19 pandemic, it’s important that LEAs make every effort to comply with new mandates in a timely manner.
The Claims Presentation Requirement of The Government Claims Act Can Protect Local Educational Agencies Administering An Individualized Education Program
Author: Omer A. Khan, Attorney at Law
On June 26, 2020, the First Appellate District of the California Court of Appeals denied the parents’ appeal seeking to recover damages from a school district after their child tragically committed suicide. (Neeley v. San Mateo Union High School District (2020) 120 LRP 19625.) The court reasoned that the Government Claims Act, which permits claimants to collect money damages from public agencies for personal injuries, requires that claimants first give notice of potential claims to the District directly by presenting the factual basis for their claims in a manner prescribed by the District. Here, the court found that the parents’ claim was not factually specific enough to give the District notice.
The student was a senior in high school and a member of the school’s football team. The student was also on an Individualized Educational Program (“IEP”) because he had been experiencing mental and emotional difficulties. On January 13, 2014, the student tragically took his own life. About four months later, the parents presented their written government claim to the school. The parents alleged that a trainer for the football team had physically injured the student by massaging a muscle the student had strained during a football game causing the student to become severely depressed which, in turn, ultimately caused him to commit suicide. However, the parents’ written claim did not make mention of the student’s mental health issues or the school’s management of his IEP. The District denied the parents’ claim.
The parents then filed a petition in court for personal injury and wrongful death, asserting not only the same causes of action asserted in their prior written petition, but also adding that the District’s failure to provide a mental health assessment and mental health services pursuant to the IEP was a contributing factor to the student’s suicide. The trial court asserted that since the parents did not include these IEP-based allegations in their written claim to the District, they were not permitted to bring these allegations to court. The parents then appealed the court’s decision.
The Court asserted that that the written claim to the District was required to provide “[a] general description of the . . . injury, damage or loss incurred so far as it may be known at the time of presentation of the claim,” and “[t]he name or names of the public employee or employees causing the injury, damage, or loss, if known.” The purpose of such requirements was “to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation.”
Here, the written claim to the District failed to give the District notice regarding the nature of the parents’ claim. Their later claim regarding the failure of the school’s IEP team was based on an entirely different set of facts and involved different employees engaged in different allegedly wrongful acts than their personal injury claim initially included. Their special education theory of wrongful death was, simply put, entirely different from the football injury theory of wrongful death asserted in the claim submitted to the District. Since the parents failed to meet the written claim requirements, their special education causes of action could not proceed.
Properly implementing the Government Claims Act can be a daunting challenge for school officials due to the prospect of liability. However, local educational agencies should know that the Act itself includes a number of provisions designed to give them a chance to defend themselves. As described above, one such provision is the written claim presentation requirement, which requires the claimant to provide the LEA with the specific facts underlying the claim so that it may properly consider the claim. If an LEA receives a Government Claims Act written claim, the first step is always to review the written claim for timeliness and specificity. A deficiency in either category may significantly impact the outcome of a claim. In addition, LEAs should promptly contact their legal counsel and insurance provider whenever a claim is received.
Office of Administrative Hearings Rules in District's Favor on Reasonable Restrictions to Nonpublic Agency Aide Attendance at IEP Meetings and Communication with Parents
Author: Michael Tucker, Attorney at Law
On May 15, 2020, the Office of Administrative Hearings (OAH) ruled that failure to include a nonpublic agency aide in a student’s IEP meeting did not significantly impede the parent’s participation. OAH also ruled that setting reasonable restrictions on communication with the aide, while still providing meaningful contact, did not significantly impede the parent’s participation in decision making. (Parent on Behalf of Student v. Mountain View Unified School District, Case No. 2019100681.)
Student qualified for special education under the categories of autism and speech and language impairment. Student’s IEP included a behavior technician aide provided by a nonpublic agency. Student’s parent requested that the aide be present at an IEP meeting. While the aide did not attend the meeting in question, the aide’s two clinical supervisors were in attendance.
The Local Educational Agency (LEA) also directed all communication related to the aide through the Student’s special education teacher. Instead, Student’s parent sought raw data from daily behavior logs, contemporaneous communication with the aide and other detailed information.
Student filed a Due Process Complaint alleging that the LEA’s decision to deny parent’s request that the Student’s aide be present at an IEP meeting denied Student a Free Appropriate Public Education (FAPE). Specifically, Student claimed that he was denied meaningful participation in the IEP meeting because the aide’s attendance was essential to Student’s participation in the meeting.
Student also alleged that the LEA denied Student FAPE by preventing free communication between Student’s parent and the nonpublic agency aide. Particularly, Student claimed that the LEA’s restrictions on communication received from the aide prevented the parent from meaningfully participating in the decision making process.
After a hearing, OAH ruled in favor of the LEA on both issues.
A student is denied a FAPE if procedural inadequacies significantly impede the parent’s opportunity to participate in the decision making process. (20 U.S.C. § 1415(f)(3)(E)(ii)(I)-(III).) The parents of a child with a disability must be afforded an opportunity to participate in IEP meetings. (34 C.F.R. § 300.501(b).) “A parent has meaningfully participated in the development of an IEP when he or she is informed of the child’s problems, attends the IEP team meeting, expresses disagreement regarding the IEP team’s conclusions, and requests revisions in the IEP.” (N.L. v. Knox County Schools (6th Cir. 2003) 315 F.3d 688, 693-5.) In this case, Student alleged that he was denied meaningful participation because the LEA failed to include the aide as an essential IEP team member. Essential IEP members are often considered to include the following:
- the student’s parents;
- a general education teacher;
- the student’s special education teacher;
- LEA representative;
- an individual qualified to interpret evaluations; and
- at the discretion of the parent or the LEA, other individuals that have knowledge or special expertise regarding the child, including related services personnel as appropriate.
(20 U.S.C. § 1414(d)(1)(B)(i)(vi); 34 C.F.R. § 300.321.)
While Student argued that the aide possessed “knowledge or special expertise regarding the child”, OAH found that “a person with knowledge or special experience…is not an essential member of the IEP team, unless they are also qualified to interpret evaluations, under 34 Code of Federal Regulations part 300.321(a)(5).” Therefore, OAH found that the aide was nonessential because the aide was not qualified to interpret evaluations and exclusion from the IEP meeting was not a violation of FAPE.
OAH also found that the LEA’s restrictions on parent’s communication with the aide were reasonable. LEAs are generally permitted to place reasonable restrictions between providers and a parent to minimize “unproductive communication.” (L.F. v. Lake Washington School District #414 (2020) 947 F.3d 621.) Here, OAH found that reasonably restricting communication while still providing detailed “daily, weekly, and monthly communications” with the parent did not amount to a FAPE violation.
While LEAs should carefully consider parent’s requests, parents are not entitled to unfettered access to school staff. Here, OAH agreed with the reasonable restrictions placed on the parent’s requests by the LEA. Specifically, OAH pointed out that not every parent request to invite certain school staff to an IEP is a required attendee as an essential IEP member. While OAH did not make much of the fact that the aide’s supervisors were at the IEP meeting, it’s worth noting that their presence may have made the aide’s input redundant. OAH also found, through a recording of the IEP meeting, that the parent was able to fully participate despite the aide’s absence.
Moreover, restrictions can be placed on a parent’s request for communication so long as the LEA’s restrictions are reasonable considering the amount of communication offered to the parent. Specifically, OAH agreed that contemporaneous communication as requested by the parents was not required considering the LEA’s already robust communication offerings.
LEAs are encouraged to carefully consider a parent’s request with this guidance in mind.