On March 17, 2020, Governor Newsom signed SB 117, an education budget trailer bill, that includes protections for school districts, county offices of education, and charter schools (hereafter “local educational agencies” or “LEA’s”) that have closed, or will close, due to COVID-19. Most importantly, SB 117 provides LEA’s will not lose funding due to COVID-19 closures. The bill supports Governor Newsom’s Executive Order N-26-20 which provided protections for school funding. (Our bulletin on Governor Newsom’s Executive Order is found here. The bill also waives other requirements and timelines to support LEA’s that have closed and appropriates $100,000,000 in funding for the purchase of protective equipment and for the supplies and labor required for additional cleaning of school sites for LEA’s that provided classroom-based instruction after March 4, 2020 and before June 30, 2020.
This bill will take effect immediately as it is a budget trailer bill. We have summarized the bill’s specifics below.
FUNDING RELIEF
Average Daily Attendance Relief
SB 117 provides that, for LEA’s that comply with Executive Order N-26-20, Average Daily Attendance (“ADA”) reported to the California Department of Education (“CDE) for the second period of 2019-2020 shall only include full school months from July 1, 2019 to February 29, 2020, inclusive. SB 117 also waives the requirements of Education Code section 1244 (requiring the county superintendent of schools to annually submit, no later than July 15, a complete report of the attendance credited to the schools of the county for the school year closing June 30 to the Superintendent of Public Instruction (“SPI”)) and Education Code section 41601 (requiring school districts to report ADA to the SPI in the first and second period). SB 117 refers to this as a “hold harmless apportionment.”
SB 117 states that it is the intent of the Legislature that LEA’s receiving the hold harmless apportionment ensure they compensate and pay their employees and contractors during the period of time a school is closed due to COVID-19. We understand this to be a signal by the Legislature that LEA’s should continue paying their employees because they are not losing any funding. Further, the Legislature’s intent in passing this provision of SB 117 was likely, in part, to ensure that employees affected by school closures would not be economically affected by a loss in pay.
Instructional Minutes and School Days Requirements Deemed Met
SB 117 provides that instructional days and minutes that an LEA would otherwise have offered pupils to meet the requirements of the Education Code and its implementing regulations are deemed to have been met during the period of closure due to COVID-19. This includes the following requirements:
Thus, LEA’s will receive funding as if they met each of the requirements above. To obtain relief under this provisions, superintendents of school districts, county superintendents of schools, and administrators of charter schools must certify to the SPI, in writing, that the school or schools closed due to COVID-19 and provide any other information requested by the Superintendent. We anticipate the SPI will provide forms for this purpose. However, a letter should be sufficient.
Waives After School Education and Safety Program Requirement to Submit Request for Pupil Attendance Credits Based on Qualifying Event
The provisions of the Education Code governing After School Education and Safety Program grants (Ed. Code, §§ 8482 et seq.) provide that if a program grantee is temporarily prevented from operating its entire program due to natural disaster, civil unrest, or imminent danger to pupils or staff (a “qualifying event”), the CDE may approve a request by the grantee for pupil attendance credits equal to the average annual attendance the grantee would have received if it had been able to operate its entire program during that period. SB 117 provides that COVID-19 closures meet the definition of a “qualifying event” as set forth in the Education Code. Further, SB 117 waives the requirement for a grantee under the program to submit a request for pupil attendance credits. The CDE will automatically credit grantees with the average annual attendance the grantee would have received had it been able to operate the program during the COVID-19 closure.
Note: This applies only to grantees that comply with Executive Order N-26-20.
Waives Attendance and Reporting Requirements for Childcare and Development Programs
SB 117 waives the attendance and reporting requirements for childcare and development programs (Ed Code, §§ 8240 et seq.) in the Education Code and its implementing regulations for LEA’s that comply with Executive Order N-26-20 and close programs due to COVID-19. The State SPI will develop guidance and direction regarding contractual and reporting requirements to assist LEA’s in meeting the requirements to receive the benefit of the waiver. Pursuant to that guidance, child care and development programs will receive reimbursement using the most recent certified record or invoice available. SB 117 directs the State SPI to develop informal directives and bulletins to address contractual and reporting requirements for childcare and development programs. These informal directives and bulletins shall comply with all Executive Orders.
WAIVER OF TIMELINES FOR ASSESSMENTS, PUPIL RECORD DISCLOSURE, AND COMPLAINTS
Extends Timelines to Assess Pupils for English Language Proficiency by 45 Days
Existing law requires school districts with one or more pupils who are English learners to assess the English language development of each pupil in order to determine the pupil’s level of English proficiency. (Federal law may require county offices of education and charter schools to assess English proficiency, as well.) Under the Education Code and implementing regulations, districts must normally assess English proficiency upon the pupil’s initial enrollment and at least annually during a four-month period after January 1. SB 117 extends the timeline to assess pupils for English language proficiency by 45 days, unless SPI determines otherwise. We will keep you updated as to whether the SPI determines to change this requirement.
Extends Timelines for Assessments
SB 117 also extends the “testing window” for the following assessments by the length of time a school is closed due to COVID-19, or until the end of the testing window set forth in the Education Code, whichever comes first:
This includes the same English language learner assessments SB 117 extended by 45 days. This portion of the bill appears to conflict with the section summarized above. We recommend using the requirement that provides for the earliest testing date.
Extends Timelines for Uniform Complaints
Existing law requires LEA’s to follow Uniform Complaint procedures to address certain complaints by students, parents, and employees and imposes timelines for resolution. SB 117 extends the timelines imposed for Uniform Complaint Procedures in both the Education Code and implementing regulations for the length of time a school is closed due to COVID-19. Thus, if an LEA has a 60 day timeline for resolution of a complaint and the affected school is closed for 30 days, the timeline will be 90 days. (Note that the applicable regulations allow an LEA to obtain an extension of time to resolve the complaint from the complainant. This provision would not require approval by the complainant for an extension equal to the length of the school closure.)
Extends Timelines for Proposed Assessment Plans for Special Education Students
Existing law establishes a 15 day timeline for LEA’s to prepare a proposed assessment plan after referral of a pupil for assessment to determine if the pupil is an individual with exceptional needs. This 15 day timeline excludes calendar days between the pupil’s regular school sessions or terms and calendar days of school vacations in excess of five days. SB 117 requires the CDE to consider the days a school is closed due to COVID-19 as “days between the pupil’s regular school sessions” for purposes of the 15-day timeline to prepare a proposed assessment plan. Thus, the 15 day timeline to prepare a proposed assessment plan stops running at the time the school closes due to COVID-19. The timelines will begin to run again when the school reopens and the regular school session reconvenes.
Extends Timeline to Respond to Request for Student Records by Parent of Student Receiving Special Education Services under Special Education Statutes (but Not General Pupil Records Statutes)
Existing law requires LEA’s to provide parents of a student receiving special education services with the right and opportunity to examine all school records of the pupil and to receive complete copies of the records in the following circumstances:
In addition, LEA’s must provide a pupil’s special education records to a new LEA where the pupil has enrolled within five working days upon receipt of a request from the new LEA.
SB 117 waives these timelines for providing records for a school that has closed due to COVID-19 up until the time the school reopens and the regular school session reconvenes. This waiver applies to all LEA’s, even where the LEA offers distance learning, independent study, or both during the closure. SB 117 states that the Legislature “encourages” LEA’s to respond “as expeditiously as possible to requests for records from parents or guardians during the closure.”
There are two of notable exceptions here. Federal law requires that LEA’s provide special education records upon request of a parent or guardian “without unnecessary delay,” and in no case more than 45 days after the request has been made. In addition, federal law requires LEA’s to provide the records before IEP meetings and before resolution sessions. SB 117 specifically states that it does not waive any of these federal requirements. LEA’s must follow these federal requirements.
In addition, Education Code section 49069.7 requires school districts to provide all parents (whether their pupils receive special education services or not) with copies of their student’s pupil records within five business days following the date of the request. SB 117 does not reference this requirement. Thus, the extension to provide records pursuant to a parental request does not provide relief because the parent could make the request under section 49069.7.
Similarly, Education Code section 49068 requires a school to transfer a copy of the pupil’s “permanent record” to a new school in which the pupil has enrolled within 10 school days following receipt for the request from the new school. SB 117 does not reference this requirement. Thus, LEA’s would need to send pupil records within 10 school days following a receipt of a request from the pupil’s new school, despite the extension of time granted with respect to special education records.
CHARTER SCHOOL DISTANCE EDUCATION
Charter Schools May Add Independent Study or Distance Learning Programs without Material Revision of Charter
According to SB 117, a charter school that does not have an independent study or distance learning program in its currently-approved charter petition may offer independent study or distance learning programs during any COVID-19 closure without submitting a request to its chartering authority to materially revise its charter. This applies only to the period of a COVID-19 closure. We read this provision to mean that if a charter school intends to continue these programs after the completion of a COVID-19 closure, the charter school must submit a request to materially revise its charter.
APPROPRIATION OF FUNDS FOR PPE AND CLEANING
Appropriates $100,000,000 for Personal Protective Equipment or to Pay for Supplies and Labor Related to Cleaning School Sites for Schools that Provided Classroom-Based Instruction after March 4, 2020
SB 117 appropriates $100,000,000 from Proposition 98 general education funds to be apportioned by the SPI to LEA’s to purchase personal protective equipment, or to pay for supplies and labor related to cleaning school sites, or both. The SPI will apportion the funds on the basis of ADA generated by LEA’s that provided a classroom-based educational program to pupils after March 4, 2020 and before June 30, 2020. Thus, this applies only to LEA’s that operated classroom-based educational programs after March 4, 2020 and before June 30, 2020. Each LEA will receive not less than $250.00 per school site.
MANDATED COSTS
Provides that SB 177 Requires Mandated Costs
If the commission on state mandates determines SB 117 contains mandated costs, LEA’s will receive reimbursement for mandated costs.