NEW LAW: REQUIRING IEPS TO INCLUDE DISTANCE LEARNING PROVISIONS

During the current COVID-19 pandemic, there have been many changes related to educational services which impact students receiving special education.

On June 29, 2020, Governor Newsom signed the 2020 Budge Act and accompanying budget-implementing legislation, including Senate Bill (SB) 98 (Chapter 24, Statutes of 2020), the education omnibus trailer bill. This Senate Bill changes various provisions in the California Education Code concerning special education. At the heart of these changes, SB 98 impacts the way that students will receive educational services during the COVID-19 pandemic and/or emergency condition.[1]

Individualized Education Program Requirements

            SB 98 requires that an individualized education program (“IEP”) include a description of how special education and related services, supplementary aids and services, transition services, and extended school year services will be provided under emergency conditions. This new description needs to be included in the development of all initial IEPs, and in all upcoming annual IEPs that have not already met the new requirement. In addition, the IEP teams will need to take into account public health orders when including the new descriptions of how services, aids, transition services, etc. will be provided during emergency conditions. See Cal. Educ. Code § 56345(a)(9)(A-C).

Moving forward, the new requirement will make it so that schools must have a written individualized plan on how to provide special education and related services to each student during the emergency condition. Hopefully, the new provision will provide greater insight on what parents should expect will happen when their student cannot receive services at school or in-person for more than 10 school days. In addition, Parents should expect that IEP teams will address this new requirement in their initial or upcoming annual IEP.

Distance Learning

            The Education Code now defines “distance learning” as “…instruction in which the pupil and instructor are in different locations and pupils are under the general supervision of a certificated employee of the local education agency…”. See. Cal. Educ. Code §43500(a). Distance learning may include interactions, instruction, and check-ins between teachers and pupils through the computer or communication technology; video or audio instruction that relies on computer or communications technology; and the use of print materials incorporating assignments that are the subject of written or oral feedback. See Cal. Educ. Code §43500(a)(1)-(3).

            Moving forward, the new definition incorporates that schools must provide the necessary accommodations to ensure that each student’s IEP can be executed in a distance learning environment. See Cal. Educ. Code §43503.

Learning Continuity and Attendance Plan and Funding to Mitigate Learning Loss

            By September 30, 2020, school districts, county boards of education, and charter schools must adopt a Learning Continuity and Attendance Plans for the 2020-2021 school year. These Plans must include what additional supports will be provided for students with exceptional needs served across the full continuum of placements during the period in which distance learning is provided. In addition, the Plan must include how schools will address student learning loss that results from COVID-19 during the 2019-20 and 2020-21 school years. The Plan must include: (1) how schools will assess pupils to measure learning status, particularly in the areas of English language arts, English language development, and mathematics; (2) how schools will address learning losses and accelerate learning progress for students, and how these strategies differ for students who are classified as English learners, are eligible for a free or reduced-price meal, or are foster youth; and (3) how schools will measure the effectiveness of their actions used to address learning loss, and accelerate learning progress. See Cal. Educ. Code § 43509.

In addition, the Plan can allow greater allocation of State and Federal funding to support student achievement and mitigate learning loss. Specifically, the Plan allows for certain funds to be used to: (1) address learning loss or accelerate progress to close learning gaps, (2) extend the instructional school year and/or increase the amount of instructional time or services; (3) provide additional academic services for students, such as assessments, intensive instruction, additional materials, or devices; and (4) provide supports to address other barriers to learning, such as mental health supports, services, and trainings..

            Moving forward, every school must create a Plan for the coming academic year that includes the required additional support for students with exceptional needs. The Plan will work to ensure that students will have greater access computers, devices, and internet to complete distance learning. In addition, the Plan will help document daily student participation and create a system to track non-participating students.

Furthermore, the Plan will help to produce data to address learning losses that students are experiencing during emergency conditions, and to determine which solutions have been the most beneficial to close learning gaps. The Plan will provide information on the allocation of funding for special education students, English learners, and those students behind academically. The Plan allows schools to put aside funding to extend the academic school year, and/or provide additional instructional minutes. The Plan will work to promote greater connectivity between students and teachers, and teachers and parents. Lastly, the new requirements acknowledge the growing mental health issues that many are experiencing, and are providing funding to help address the growing mental health issues that both students, teachers, and parents are experiencing.

            Overall, the State of California through Senate Bill 98 has acknowledged that there are many downfalls of distance learning, especially for students with special needs. Through Senate Bill 98, the State is working to put in additional safeguards to allow students to access their IEPs, and to provide additional funding for services and supports to students with special education needs.


[1] An emergency condition is defined as in which instruction or services, or both, cannot be provided to the pupil either at the school or in person for more than 10 school days.

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