Understanding the changes for California special education students, and how those changes impact your child
School closures and the impact of the COVID-19 pandemic have created a rapidly changing situation for California special education students and their families. Over the past several weeks, schools have shifted to distance learning models, and what that has meant specifically for students with disabilities has changed over time.
Many school districts are putting out confusing messages, or telling Parents misleading things like that IEP meetings can’t happen during school closures. Parents have questions about how their rights under the Individuals with Disabilities Act may be impacted, and how that effects the IEP process for their child. We will try to break it down for you here.
What we know about changes to California special education laws:
The good news is that the U.S. Department of Education did not seek waivers of the IDEA other than as applied to students transitioning from 0-3 services to 3-22 programs (here in California, that would be students transitioning from Regional Centers into the School District at age 3). Along with those waivers as to the assessment process for incoming 3 year olds, the Department of Education made it clear that those students would continue to have access to their 0-3 interventions (that is, their services under their IFSP) in the meantime. In deciding to seek no other waivers, the Department of Education made a statement that it saw “no reason” that waivers would be needed during the pandemic. In other words, the full protections of the IDEA – all of the procedural safeguards that protect parent rights in the process, all of the rights to a free appropriate public education for individual students – should still be able to be applied despite school closures.
However, in California, we have had the benefit of state laws that go above and beyond federal laws in some ways. Keep in mind that the federal law has supremacy over state law. The state is allowed to enact laws that grant greater protections and rights to individuals, but it does not have the right to enact laws that take away or lesson the protections that exist in federal law. Two examples of California’s state laws that grant more clear rights to parents in the IEP process have been impacted by state-level decisions in the wake of the pandemic.
The first was related to student records. Whereas federal law only requires records to be provided without unnecessary delay, and in no case longer than 45 days after a request, California state law had a provision that obligated school districts to provide pupil records for special education students to parents within 5 business days of their request. The second was related to the assessment process. Federal law has a provision requiring school districts to assess within 60 days of consent, but that only applies to initial assessments. California state law applies that 60 day timeline to reevaluations as well, and more importantly for our discussion about changes, state law also required districts to provide a proposed assessment plan (or to respond in writing) within 15 days of a parent’s written request to assess.
SB117 was passed in California to provide much needed relief to school districts impacted by school closures. While much of the relief provided for in SB117 was needed, and will allow districts to better serve their students, other provisions had a negative impact on students’ rights. In terms of California special education students, what SB117 did was suspend the 5 day records requirement and the 15 day assessment plan requirement in California law until schools reopen. This means that if parents make a records request during the time that schools are closed, the previous state law applying to requests for pupil records for special education students does not apply. It also means that if parents seek an assessment of their child, the law requiring an assessment plan in 15 days also does not apply.
It’s Not As Simple As It Seems…
Parents still have rights related both to records and to assessments, and it isn’t as simple as districts may try to make it sound. SB117 does not necessarily mean that parents can’t have records until schools reopen, or that there is no obligation whatsoever for districts to evaluate students.
Remember, the IDEA has not been waived. The IDEA contains provisions that require school districts to conduct “child find” activities – meaning seeking out, locating, evaluating and identifying students with disabilities that may need special education. This is sometimes referred to as “seek and serve.” Under child find, districts could still be required to assess if necessary to ensure that they are making a FAPE available to all students.
As to records, it is even more complex. While the provision of the California Education Code applying to special education students was impacted by SB117, a separate provision in the state law that applies to records for all pupils (regardless of whether they are eligible for an IEP) was not referenced. It remains to be seen how this other provision may be impacted, and how districts will interpret their obligations. The federal requirement for records, however, still stands. State law cannot supersede federal law, and by enacting SB117, the state had no authority to change the existing mandate that districts provide records without unnecessary delay and in no case more than 45 days after the request.
An Overview for Parents
We have put together this infographic to explain these changes for parents: