The Governor signed Senate Bill 98 (“SB 98”), the K-12 education budget trailer bill, on June 29, 2020. Therefore, our office will be summarizing key portions of that bill for our clients. This Legal Update addresses SB 98’s apportionment, minimum required days and minutes, and the “distance learning” provisions.
I. AVERAGE DAILY ATTENDANCE SHALL GENERALLY BE BASED UPON 2019-2020 ADA
SB 98 amends the typical apportionment rules for the 2020-2021 school year, and provides that, for all programs meeting the definition of “Local Educational Agency” (“LEA”) under SB 98, 2020-2021 average daily attendance (“ADA”) will be based on the 2019-2020 reported ADA. Specifically, LEAs will receive apportionment based on the ADA reported for both the second period (“P-2”) and the annual period apportionment that included all full school months from July 1, 2019, to February 29, 2020, inclusive, (“P-1” plus 9 days) and extended year average daily attendance attributed to the 2019–20 school year. This rule does not apply to nonclassroom-based charter schools.
Any LEA seeking an upward adjustment to ADA for the 2019–20 fiscal year, either in its P-2 or annual report, must have its upward adjustment “substantiated by concurrence from an independent auditor.”
II. MINIMUM INSTRUCTIONAL DAYS AND MINUTE REQUIREMENTS FOR 2020-2021
SB 98 does not amend or waive current requirements for total instructional days, contained in Education Code sections 41420, 46200.5, and 46208, and in Title 5, Section 11960. It does, however, provide that, for the 2020-2021 school year, an instructional day is a day in which all pupils are scheduled for the full established schoolday and are under the immediate supervision of a certificated employee or are enrolled in a distance learning program that meets the requirements described below.
SB 98 does waive the minimum requirement for annual instructional minutes and provides flexibility in calculating minimum daily instructional minutes. Specifically, for the 2020–21 school year, the minimum schoolday for an LEA, including a classroom-based charter school, is:
(a) 180 instructional minutes in kindergarten.
(b) 230 instructional minutes in grades 1 to 3, inclusive.
(c) 240 instructional minutes in grades 4 to 12, inclusive.
(d) 180 instructional minutes for pupils in grades 11 and 12 that are also enrolled part time in classes of the California State University or the University of California for which academic credit will be provided upon satisfactory completion of enrolled courses.
(e) 180 instructional minutes for any pupil who is also a special part-time student enrolled in a community college under Article 1 (commencing with Section 48800) of Chapter 5 of Part 27 of Division 4 and who will receive academic credit upon satisfactory completion of enrolled courses.
(f) 180 instructional minutes for pupils enrolled in a continuation high school.
Although annual instructional minutes need not be provided at the same level as in a typical school year, SB 98 provides that for the 2020–21 school year, instructional minutes shall be determined as follows:
(1) For in-person instruction, instructional minutes shall be based on time scheduled under the immediate physical supervision and control of an employee of the local educational agency who possesses a valid certification document, registered as required by law.
(2) For distance learning, instructional time shall be based on the time value of assignments as determined, and certified to, by an employee of the local educational agency who possesses a valid certification document, registered as required by law.
(3) For a combined day of instruction delivered through both in-person instruction and distance learning, time scheduled under the immediate supervision of an employee of the local educational agency who possesses a valid certification document can be combined with assignments made under the general supervision of an employee of the local educational agency who possesses a valid certification document as registered by law to meet the equivalent of a minimum day of instruction.
The minimum Physical Education instructional minutes are waived for 2020-2021.
III. DEFINING DISTANCE LEARNING AND THE PARAMETERS FOR ITS IMPLEMENTATION
SB 98 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. It encourages LEAs to provide in-person instruction, where students are under the immediate physical supervision and control of a certificated employee while engaged in educational activities. SB 98 does not require schools to offer a “distance learning” option, but permits a hybrid of the two models. Distance learning may be offered under either of the following circumstances:
(A) On a local educational agency or schoolwide level as a result of an order or guidance from a state public health officer or a local public health officer.
(B) For pupils who are medically fragile or would be put at risk by in-person instruction, or who are self-quarantining because of exposure to COVID-19.
According to letters from the Senate and Assembly expressing the Legislative intent of the latter term, the Legislature intends to provide flexibility to schools in making individualized decisions regarding whether a student is “at risk” if he or she attends school in-person. Both letters state, “as such, [this section] does not require an LEA to verify or make a determination that a request for this allowance meets a specific standard. This section contemplates that LEAs may provide distance learning to students with varying circumstances – whether the student has health conditions, family members with health conditions, cohabitates or regularly interacts with high-risk individuals, or is otherwise identified as ‘at-risk’ by the parent or guardian.” Unless and until a regulation is written to clarify this or the CDE provides guidance, an LEA could establish criteria for this, ranging from a highly permissive simple written parent statement to the more restrictive requirement of a medical certification. We advise consulting legal counsel if you are contemplating creating such a policy.
IV. COMPONENTS OF DISTANCE LEARNING
Distance learning may include, but is not limited to, all of the following:
- Interaction, instruction, and check-ins between teachers and pupils through the use of a computer or communications technology.
- Video or audio instruction in which the primary mode of communication between the pupil and certificated employee is online interaction, instructional television, video, telecourses, or other instruction that relies on computer or communications technology.
- The use of print materials incorporating assignments that are the subject of written or oral feedback.
SB 98 requires components for distance learning, which include assuring connectivity and devices to participate in programs; content aligned to grade level standards; supports for students who are not performing at grade level and for students who need additional supports, including special education, foster children, homeless students, English learners, and mental health supports; and daily live interaction between certificated employees and student peers.
V. COMPULSORY ATTENDANCE MANDATES
A. Documenting Student Participation
LEAs remain required to track student attendance and responsible for responding to truancies when students are engaged in distance learning on a daily basis. “[D]aily participation may include, but is not limited to, evidence of participation in online activities, completion of regular assignments, completion of assessments, and contacts between employees of the local educational agency and pupils or parents or guardians.”
Each LEA must maintain a weekly engagement record for each pupil, documenting “synchronous or asynchronous instruction for each whole or partial day of distance learning, verifying daily participation, and tracking assignments.” A student who does not participate daily in either in-person instruction or distance learning shall be deemed “absent” by the LEA. The LEA “shall use documentation of the absence for purposes of reporting its chronic absenteeism rates in its local control and accountability plan.” LEAs must:
. . . [D]evelop written procedures for tiered reengagement strategies for all pupils who are absent from distance learning for more than three schooldays or 60 percent of the instructional days in a school week. These procedures shall include, but are not limited to, verification of current contact information for each enrolled pupil, daily notification to parents or guardians of absences, a plan for outreach from the school to determine pupil needs including connection with health and social services as necessary and, when feasible, transitioning the pupil to full-time in-person instruction.
B. Developing a Learning Continuity and Attendance Plan
By September 30, 2020, all LEAs must develop a Learning Continuity and Attendance Plan. This will be aided by the State Board of Education developing a template for the learning continuity and attendance plan by August 1, 2020. This plan is similar to the COVID-19 Operations report adopted in conjunction with the LEA’s 2020-2021 annual budget. Its requirements are attached to this Legal Update.
Given that LEA governing bodies must adopt this plan by September 30, 2020, we advise putting these considerations and negotiations with affected bargaining units on your summer “to-do” list.
Please contact our office with questions regarding this Legal Update or any other legal matter.
The information in this Legal Update is provided as a summary of law and is not intended as legal advice. Application of the law may vary depending on the particular facts and circumstances at issue. We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.
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All rights reserved. However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.
Requirements for the Learning Continuity and Attendance Plan per SB 98.
(1) A description of how the [LEA] will provide continuity of learning and address the impact of COVID-19 on pupils, staff, and the community in the following areas, and the specific actions and expenditures the [LEA] anticipates taking to support its ability to address the impacts of COVID-19:
(A) In-person instructional offerings, and specifically, the actions the [LEA] will take to offer classroom-based instruction whenever possible, particularly for pupils who have experienced significant learning loss due to school closures in the 2019–20 school year or are at greater risk of experiencing learning loss due to future school closures.
(B) Plans for a distance learning program, including all of the following:
(i) How the [LEA] will provide continuity of instruction during the school year to ensure pupils have access to a full curriculum of substantially similar quality regardless of the method of delivery. This shall include a plan for curriculum and instructional resources that will ensure instructional continuity for pupils if a transition between in-person instruction and distance learning is necessary.
(ii) A plan for ensuring access to devices and connectivity for all pupils to support distance learning whenever it occurs.
(iii) How the [LEA] will measure participation and assess pupil progress through live contacts and synchronous instructional minutes, as well as how the time value of pupil work will be measured.
(iv) What professional development and resources will be provided to staff to support the provision of distance learning, including technological support.
(v) To the extent that staff roles and responsibilities change because of COVID-19, what the new roles and responsibilities of affected staff will be.
(vi) What additional supports for pupils with unique needs will be provided, including for English learners, pupils with exceptional needs served across the full continuum of placements, pupils in foster care, and pupils who are experiencing homelessness during the period in which distance learning is provided.
(C) How the [LEA] will address pupil learning loss that results from COVID-19 during the 2019–20 and 2020–21 school years, including all of the following:
(i) How the [LEA] will assess pupils to measure pupil learning status, particularly in the areas of English language arts, English language development, and mathematics.
(ii) What actions and strategies the [LEA] will use to address learning loss and accelerate learning progress for pupils, as needed, and how these strategies differ for pupils who are classified as English learners, are eligible for a free or reduced-price meal, or are foster youth, as those terms are defined in Section 42238.01, individuals with exceptional needs, pupils in foster care, and pupils who are experiencing homelessness.
(iii) How the effectiveness of the services or supports provided to address learning loss will be measured.
(D) How the [LEA] will monitor and support the mental health and social and emotional well-being of pupils and staff during the school year.
(E) What professional development will be provided to staff, and what resources will be provided to pupils and staff to address trauma and other impacts of COVID-19 on the school community.
(F) Pupil engagement and outreach, including the procedures of the [LEA] for tiered reengagement strategies for pupils who are absent from distance learning, and how the [LEA] will provide outreach to pupils and their parents or guardians, including in languages other than English, when pupils are not meeting compulsory education requirements, or the [LEA] determines the pupil is not engaging in instruction and is at risk of learning loss.
(G) School nutrition, including how the [LEA] will provide meals for pupils who are eligible for free or reduced-price meals,  for pupils participating in both in-person instruction and distance learning, as applicable and contingent upon the department receiving an approved waiver from the United States Department of Agriculture, for each day of the scheduled school year.
(2) For each of the areas described above, the learning continuity and attendance plan shall describe how federal and state funding included in the original or revised budget adopted by the governing board of a school district, a county board of education, or the governing body of a charter school is used to support the efforts described in the learning continuity and attendance plan, including federal and state funds provided for learning loss mitigation . . . . If the actions and expenditures described above are not included in the budget, the learning continuity and attendance plan shall reference how these expenditures will be included in the first interim report of the [LEA].
(3) The learning continuity and attendance plan shall include a description of how the [LEA] is increasing or improving services in proportion to funds generated on the basis of the number and concentration of unduplicated pupils under the local control funding formula  in the 2020–21 fiscal year pursuant to the regulations adopted by the state board . . . .
 The Assembly reviewed a substantially similar education finance bill, AB 77. That version will not be adopted in light of SB 98’s approval.
 As related to SB 98’s distance learning and apportionment provisions, the term “local educational agency” means a school district, county office of education, or charter school, excluding a charter school classified as a nonclassroom-based charter school pursuant to Sections 47612.5 and 47634.2 as of the 2019–20 fiscal year.
 School districts are required to offer 180 instructional days per school year and charter schools are required to offer 175 instructional days per school year. The CDE will withhold funds from an LEA’s Local Control Funding Formula (“LCFF”) based upon a formula if an LEA offers fewer than the required instructional days.
 According to letters from both the Senate and the Assembly expressing the intent of this term, it is not the Legislative intent to require an LEA to seek out or receive approval from a state or local public health officer prior to adopting a distance learning model. This section is also not intended to prevent an LEA from adopting a distance learning, hybrid, or mixed-delivery instructional model to ensure safety. Instead this section is intended to grant flexibility to an LEA to determine what instructional model the LEA will adopt during the COVID-19 Pandemic, taking into account the needs of their students and staff, the infrastructure of the school, and public health orders. See June 26, 2020 Letter from the Assembly on Budget to the Clerk of the Assembly re Legislative Intent – Senate Bill 98; see also June 26, 2020 Letter from the Senate to the Senate Secretary re: Legislative Intent – Senate Bill 98.
 Note that if an LEA is not offering distance learning, the LEA is not required by SB 98 to provide it to these groups of students.
 We interpret this requirement to require an LEA provide connectivity and devices if the students’ work or class participation relies in any way upon access to the internet or a technological device.