The State of Special Education in the State of California

The State of Special Education in the State of California

Waivers and state law changes

As a response to the COVID-19 pandemic, Congress requested Secretary of Education Betsy DeVos to determine if waivers of provisions of federal laws to “provide limited flexibility” to state and local education agencies during this time.

Secretary DeVos proposed waivers in two IDEA related areas:

1.     Extending part B transition evaluation timelines for children served under part C until a part B evaluation is completed. 

Section 612(a)(9) of the IDEA (20 U.S.C. § 1412(a)(9))
Section 614(a)(1)(C)(i)(I)) of the IDEA (20 U.S.C. § 1414(a)(1)(C)(i)(I)) Section 637(a)(9)(A)(ii)(II) of the IDEA (20 U.S.C. § 1437(a)(9)(A)(ii)(II)) 

Part C provides early intervention services to infants and toddlers with disabilities, birth through age two years. At the end of that period, when the child turns three, he or she is evaluated for special education under part C, which applies to all children age three through 21.

The part B waiver would provide the Secretary with the authority to extend IDEA part B transition evaluation timelines (part B initial evaluation).  The calculation of a timeline obligation would resume no later than the day on which health and safety factors allow for “face-to-face” meetings to resume and the toddler is able to be evaluated. 

The waiver authority would also include explicit authorization for part C services to continue during the delayed part B transition timeline so the toddler may continue to receive part C services after his or her third birthday, and until a part B evaluation is completed and an eligibility determination has been made.  

2.     Providing relief from repayment penalties for recipients of IDEA part D personnel preparation grants. This refers to payment for the training of special education professionals that states owe to the federal government. 

Section 662(h)(1) of the IDEA (20 U.S.C. § 1462(h)(1)) 

This waiver authority would allow the Secretary to grant a deferral of the work or repayment requirements or allow credit to be given for the service obligation if employment was interrupted by the COVD-19 national emergency.  

Click here for a link to read the Department of Educations report.  

California’s SB 117:

Additionally, on March 17, 2020, California Governor Gavin Newsom signed SB 117.  For the most part, SB 117 was important for public schools to ensure they were able to continue to receive state funding.  However, there were two provisions that directly impacted special education students.  

First, existing law established a 15-day timeline for a school district to proposed an assessment plan after a student has been referred for a special education evaluation.  The 15-day timeline excludes calendar days between the student’s regular school session or terms and calendar days of school vacations in excess of five days.  SB 117 requires the California Department of Education 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.   This will greatly affect special education students and those who are suspected as requiring special education by delaying critical supports and services they may require.  

Second, 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 school districts, even where the district offers distance learning, independent study, or both during the closure. SB 117 states that the Legislature “encourages” school districts to respond, “as expeditiously as possible to requests for records from parents or guardians during the closure.”

There are two notable exceptions here. Federal law requires that school districts 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 school districts 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. School districts must follow these federal requirements.