AB 130 Frequently Asked Questions

Posted on July 29, 2021 • Filed under Uncategorized
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Legal Considerations

Information provided for El Dorado Charter SELPA by Heather Edwards and Michael Tucker, Attorneys at Law


Disclaimer:
This document is not to be considered legal advice. This document is intended to give a summary of the Assembly Bill as well as assist in programmatic implementation. If you require legal advice, please contact your attorney.

BACKGROUND

On July 9, 2021, Governor Gavin Newsom signed Assembly Bill 130 (AB 130) into law. AB 130 contained several mandates addressing Local Educational Agency (“LEA”) response to the COVID-19 pandemic. Among the new requirements are additional requirements for independent study.

Are charter schools required to provide independent study?

  • No, AB 130 appears to exclude charter schools from the list of LEAs required to offer independent study. AB 130 amended Education Code section 51745 to provide that “for the 2021–22 school year only, the governing board of a school district or a county office of education shall offer independent study to meet the educational needs of pupils.” (Emphasis added.) When interpreting a statute like Section 51745, the goal is “simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted.” (Cal. Civ. Code § 1858.)

    Here, AB 130 references LEAs, school districts, county offices of education, and charter schools in various sections. However, Section 51745 specifically omits charter schools. Therefore, following Civil Code section 1858, a reasonable interpretation of Section 51745 is that charter schools are specifically excluded from the requirement to provide independent study.

If requested, must a charter school provide a student with exceptional needs independent study?

  • No, a charter school is not required to provide a student with exceptional needs with independent study if requested unless the student’s participation in independent study is specifically provided for in the student’s IEP. The enactment of AB 130 did not make any change to existing law which provides that a student with an IEP may only participate in independent study if his/her IEP provides for that participation. Specifically, Education Code section 51745(c) states that:


    An individual with exceptional needs, as defined in [Education Code] Section 56026, shall not participate in independent study, unless the pupil’s individualized education program… specifically provides for that participation.

    Moreover, educational placement for students with disabilities is generally an IEP team decision. (Cal. Educ. Code § 56340 et seq.; 34 CFR 300.114 et seq.) Therefore, assuming that a charter school offers independent study to meet the educational needs of students, it is unlikely that a charter school is required to offer independent study to a student with exceptional needs unless the student’s IEP provides for it. Parents or guardians would generally be required to go through the IEP process to seek enrollment of their student in independent study. The student’s IEP team must consider whether a change in placement to independent study would still provide the student with a free appropriate public education.

What steps should a charter school take if a student with exceptional needs requests independent study?

  • Any change in the educational placement of a student with exceptional needs, such as a request to change from in-person instruction to independent study, is generally an IEP team decision. (34 CFR 300.114 et seq.) Charter schools offering independent study should convene an IEP team meeting if a student with exceptional needs requests independent study.If a parent/guardian of a student with exceptional needs requests independent study, the charter school should consider taking the following steps:
      1. Convene an IEP team meeting with the necessary notices to discuss potential placement in independent study (34 CFR 501.)
      2. Meaningfully allow for the parent/guardian’s participation as parents have a right to participate in IEP team decisions regarding student (Id.) Denying a parent meaningful participation in the IEP process can amount to a denial of FAPE. (Deal v. Hamilton County Bd. of Educ., (2004) 42 IDELR 109.)
      3. “Consider” the parents’ input. (Id.)
      4. Review all relevant information and data available to the IEP team to determine whether student can receive an appropriate education in an independent study setting. This will include reviewing information provided by the parents and/or student’s healthcare providers regarding whether the student’s health would be put at risk by in-person
      5. Provide a prior written notice to the parents/guardians of the IEP team’s decision regarding proposing student’s placement to changed, or refusing student’s placement to be (34 CFR 300.503.)

Is an LEA required to convene a meeting before changing the placement of a student with a disability who is eligible under Section 504 to independent study?

  • Yes, an LEA is required to convene a meeting before change the placement of a student with a disability who is eligible under Section 504 to independent study. Section 104.35(a) of Title 34 of the Code of Federal Regulations regulations requires local educational agencies to conduct an evaluation of any student who needs or is believed to need special education or related aids and services because of disability before taking any action with respect to the student’s initial placement and before any subsequent significant change in placement.

    In addition, Section 104.35(c) of the regulations requires that placement decisions (i.e., decisions about whether any special services will be provided to the student and, if so, what those services are) must be made by a group of persons knowledgeable about the student, the evaluation data, and the placement options. Placement decisions must be based on information from a variety of sources, with information from all sources being carefully considered and documented. Furthermore, Section 504’s least restrictive environment requirement provides that districts must educate students with disabilities with students without disabilities to the maximum extent appropriate. A district must place students with disabilities in the regular education environment unless the education of a student in the regular environment with the use of supplementary aids and services cannot be achieved satisfactorily. 34 CFR 104.34 (a).

    The Office of Civil Rights decision in Yosemite Unified School District, 110 LRP 48703 (March 15, 2010) is directly on point. In Yosemite Unified School District, OCR found that a school district violated Section 504 by not holding a Section 504 team meeting for the student before changing the student’s placement to independent study even though the change in placement was requested by a parent. OCR stated that “[t]he Student’s Section 504 team should have determined whether independent study would meet the Student’s individual needs based on her disability, and if so, the specific services and accommodations needed by the Student.”

Does AB 130 provide any additional requirements should a charter school decide to offer independent study?

  • AB 130 requires that LEAs adopt and implement policies regarding independent study. To receive apportionment for independent study, LEAs adopting independent study are required to develop and implement policies and written agreements including some additional criteria. Those additional criteria include, but are not limited to, the following:
      1. The maximum length of time, by grade level and type of program, that may elapse between the time an independent study assignment is made and the date by which the pupil must complete the assigned work.
      2. Satisfactory progress as an added means to evaluate continued independent study participation and placement.
      3. Provision of standards-aligned content in independent study that is substantially equivalent to the quality and intellectual challenge of in-person instruction.
      4. For high schools, a provision for access to all courses offered by the LEA for graduation and approved by the University of California or the California State University as creditable under the A–G admissions criteria.
      5. Procedures for tiered re-engagement strategies for all pupils who are not generating attendance for more than three school days or 60 percent of the instructional days in a school week, or who are in violation of the written agreement.
      6. A plan to provide opportunities for synchronous instruction for all grade levels, and live interaction for grades four through eight.
      7. A plan to transition pupils whose families wish to return to in-person instruction from independent study expeditiously, and not later than five instructional days.
      8. A requirement that a current written agreement for each independent study pupil shall be maintained on file and include certain specified information.

Is an IEP meeting required when a parent/guardian requests to transition out of independent study back to in-person instruction within AB 130’s five-day deadline? 

Since a placement change must generally be made by the IEP team, it is recommended that LEAs create a transition plan for the student when placed in independent study or otherwise hold an IEP team meeting to consider the transition back to in-person instruction in compliance with the 5-day timeline.AB 130’s revisions to Education Code section 51747 include a requirement that independent study policies include “a plan to transition pupils whose families wish to return to in-person instruction from independent study expeditiously, and, in no case, later than five instructional days.(Emphasis added.) Section 51747 provides that an LEA is required to adopt and implement written policies including the requirement above, among other requirements, to receive apportionments for independent study pupils. It does not appear that any exceptions are made for students who qualify for special education.

As pointed out above, the IEP team is responsible for placement decisions. (Cal. Educ. Code § 56340 et seq.; 34 CFR 300.114 et seq.). Therefore, removing a student from his/her independent study placement based on a parent request will likely require an IEP team meeting and decision.

Synthesizing this requirement with the 5-day rule in AB 130 appears to require that the LEA hold an IEP meeting within the 5 days between the request and the 5-day deadline from the request to transition the student out of independent study to in-person instruction.

However, LEAs could consider building in an approach to a potential exit from independent study when the initial placement is made. Planning for a potential transition could make the process more efficient and allow the LEA to comply with this 5-day deadline.

Also, the LEA and parent can always agree to amend the IEP without a meeting. However, LEAs should be thoughtful when using this approach to return a student to in-person learning as the student may require different supports that require team input to ensure the return is successful.

Are there any specific changes to the written agreement required for each independent study student to ensure consistency with the student’s IEP or Section 504 plan?

  • LEAs are required to maintain on file for each independent study student a current written agreement which includes, among other things, a statement detailing the academic and other supports that will be provided to address the needs of individuals with exceptional needs in order to be consistent with the pupil’s IEP or Section 504 plan. (Cal. Educ. Code § 51747(g) (7).)

Programmatic Considerations

BACKGROUND

Among the new requirements, AB 130 amended Education Code section 51745 to provide that “for the 2021–22 school year only, the governing board of a school district or a county office of education shall offer Independent Study to meet the educational needs of pupils”.

This new requirement does not apply to charter schools; a charter school is not required to offer Independent Study. However, if a charter school does choose to offer Independent Study, they are also required to follow the mandates written in the bill. For more information about the additional mandates, please reference the following CDE letter to LEAs: https://www.cde.ca.gov/sp/eo/is/changesisab130.asp

The purpose of this document is to address questions related to how these new requirements interplay with various requirements for serving Students with Individualized Education Programs (IEPs).

 

What is Independent Study?

  • “Independent study (California Education Code [EC] sections 51745–51749.3) is provided as an alternative instructional strategy, not an alternative curriculum. Independent study students work independently, according to a written agreement and under the general supervision of a credentialed teacher or teachers. While independent study students follow the district-adopted curriculum and meet the district graduation requirements, independent study offers flexibility to meet individual student needs, interests, and styles of learning.” https://cde.ca.gov/sp/eo/is/isprogramsummary.asp

Is my LEA required to provide Independent Study to a student with an IEP upon parent request due to concerns related to COVID-19?

  • No, Education Code section 51745(c) provides that no individual with exceptional needs may participate in Independent Study unless his or her IEP specifically provides for that participation. Further, Independent Study is not required to be written into a student’s IEP unless determined appropriate for the student by the IEP team.

Is independent study just an extension of distance learning?

  • No, SB 98 defined “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 educational agency.” (Ed. Code § 43500.). However, the provisions for distance learning are no longer applicable as SB 98 has “sunsetted” as of June 30, 2021. While distance learning and Independent Study are not one in the same, knowing how the student progressed within a distance learning format, may provide some context for how the student could progress within an Independent Study setting, and what supports and services may be needed.

Steps to take if a parent requests their student with an IEP participates in Independent Study?

Once received, the LEA must convene an IEP meeting to consider the request. Determination as to whether Independent Study is appropriate must be made by the IEP team within 30 days of the request, and documented in the IEP prior to placement of the student in Independent Study. http://charterselpa.org/wp-content/uploads/2018/01/16.5- HOME-HOSPITAL-HOME-INSTRUCTION-AND-INDEPENDENT-STUDY.pdf

 “Notice of Meeting” (NOM) should be sent to the parents, within a timely fashion, and with enough notice to support meaningful parent participation. For more information on what should be included on an NOM, please refer to the Charter SELPA’s Procedural Guide section on IEP Meetings: http://charterselpa.org/wp- content/uploads/2018/01/10-IEP-MEETING.pdf

Per AB 130, prior to signing the IS written agreement, the LEA must hold a pupil/parent/educator conference (EC Section 51747). At the meeting, the attendees ask questions about the educational options, curriculum offerings, and non-academic supports available in the IS program.

The IS Conference and IEP meeting can be the same meeting, with different documentation paperwork. However, make sure the parent understands BOTH the written IS agreement and the IEP before signing.

As with any other placement discussion, the IEP team should consider the thread of educational benefit. The following questions may be helpful in guiding this discussion:

  • What information is available from the student’s most recent assessments?
  • How does this inform the student’s present levels of performance and areas of need?
  • What goals are appropriate to address the student’s identified areas of need?
  • What services will be required in order to support the student’s progress on their goals?
  • In what location can those services be appropriately provided?


Answering the questions above will rely on the availability of both current/accurate assessment information and available data. If assessments are not current or accurate, the team should determine what additional assessments may be needed for the team to consider the appropriateness of Independent Study. Further, the team should consider available data, including but not limited to data concerning how the student progressed in the past year given school closures and distance learning.

Regardless of the IEP team’s determination of placement for the student, a Prior Written Notice (PWN) must be provided. A PWN is a document that is required following the proposal and/or refusal related to the initiation or change in the identification, evaluation, educational placement, or offer of FAPE (34 CFR 500.503). The information included should be sufficient to ensure that parents understand the rationale by which decisions were made and all things that were considered. For more information on PWN requirements, please refer to the related section of the Charter SELPA’s Procedural Guide: http://charterselpa.org/wp-content/uploads/2018/01/6-Prior-Written-Notice.pdf

What if, even upon consideration of data, current assessment, and additional assessment information (as appropriate) the IEP team remains unsure if Independent Study will provide a Free Appropriate Public Education (FAPE) and result in the attainment of an educational benefit for the student?

  • Once all data, current, and additional assessment information is considered, the IEP team may still remain unsure as to whether or not Independent Study will provide the student with a FAPE. In some cases, the IEP Team may consider offering a “diagnostic placement” within the Independent Study setting. A diagnostic placement would constitute a temporary placement, in order for the team to collect data and monitor progress. This data and progress information will inform the team as to the appropriateness of long-term placement in the Independent Study setting. Diagnostic placement would be reflected on the IEP through a “FAPE Sandwich” and may not be considered “stay-put”. For more information on this option, please contact your SELPA Program Specialist.

What if an IEP team agrees to Independent Study placement, and the student is not making adequate progress?

  • Per Education Code Section 51747, an LEA must have adopted written policies that include among other requirements, “the level of satisfactory educational progress and the number of missed assignments that will be allowed before an evaluation is conducted to determine whether it is in the best interests of the pupil to remain in independent study”. Therefore it will be important for school-based team members to reference their board-adopted policy in this regard. Additionally, the LEA should convene an IEP team meeting to consider the student’s progress on their IEP related goals, and whether additional supports or services are needed within the current setting.

What if an IEP team agrees to Independent Study placement, but the student is demonstrating a lack of engagement?

  • Per Education Code Section 51747, an LEA must have adopted written policies that include among other requirements “procedures for tiered re-engagement strategies for all pupils who are not generating attendance for more than three school days or 60 percent of the instructional days in a school week…”. Per this section, notification of the lack of participation/attendance, must be provided to the parent within one school day. Additionally, the LEA should convene an IEP meeting to discuss the student’s needs; a need for connection with health and social services (if necessary); and strategies, supports, or services that may be needed to increase the student’s engagement. As with any other question regarding student participation, the IEP team should consider the thread of educational benefit as it relates to the student’s placement.

What if an IEP team agrees to Independent Study placement, and the parent requests the student be transitioned out of Independent Study prior to the end date agreed upon by the IEP team?

  • Per Education Code section 51747, an LEA must have adopted written policies that include among other requirements, “a plan to transition pupils whose families wish to return to in-person instruction from Independent Study expeditiously, and, in no case, later than five instructional days”. Therefore the IEP team will need to convene as soon as possible to discuss student needs, services, and placement.

    This timeline may present a challenge for school-based teams in terms of organizing an IEP team meeting, and for families in terms of being able to attend with short notice. Please reach out to your SEPA Program Specialist if you would like to thought partner on possible mitigation strategies.

Where can I learn more about AB 130 and its requirements?


RESOURCES


REFERENCES

Training Opportunity: Strategies for Dealing with ConflictAdministrators, teachers and parents are welcome!

Join Dr. Paul Porter, current Professor at Sonoma State University and former School Superintendent, SELPA Director, and School Psychologist, in this exciting new training to support administrators, teachers, and parents in strategies for addressing conflict.