Resources > Charter Currents > Charter Currents: Coronavirus-19 Update #8: Bureaucracies Clarify (and Muddle) Key Topics as Feds Impose Complex Expanded Employee Leave Laws


Editor’s Note: CSDC is offering these Coronavirus-19 updates for public viewing, to members and non-members alike, and in front of our usual member’s only “paywall” as a service to the larger charter school community. We hope nonmembers will consider joining CSDC.


Sacramento, CA —The Coronavirus-19 (COVID-19) crisis continues to evolve rapidly, including Governor Newsom’s recent expansion of stay-in-place directives to the entire state and President Trump’s issuing a Major Disaster Declaration for California, allowing for federal support and shared costs pursuant to the Stafford Act. Several key developments since our prior COVID-19 Update (#7) are summarized below.

 

Attendance Accounting

The California Department of Education (CDE) posted additional guidance regarding attendance accounting and the implementation of the Governor’s executive order regarding school funding and SB 117. These established a streamlined process for schools closed due to COVID-19 to be funded based on their attendance through February. Key points of CDE’s new guidance include the following for closed schools:

  • This streamlined process means there is no need to submit the usual emergency ADA form (J-13A), nor to obtain certifications from local officials.
  • Instead, CDE plans to post a certification form (not posted as of when this was drafted on March 23, 2020) that is to be submitted as soon as possible after the COVID-19 emergency is over. Charter school administrators will submit a form certifying their dates of closure.
  • This continued funding is not conditioned in compliance with the “conditions” listed in the executive order (e.g., continue to offer high-quality educational opportunities, provide school meals, arrange for supervision of students, continue to pay employees). CSDC urges schools to make their best efforts to do these things even though strict compliance presumably is not necessary.
  • In a typical year, ADA is computed during so-called “full school months,” which are four-week periods that start either at the beginning of the fiscal year or on the first day of school, at the school’s option. In a typical year, schools report attendance for apportionment purposes based on all “full school months” through April 15, and CDE uses this data to compute a school’s “second period” or “P-2” ADA. ADA for closed schools instead will be computed based on schools’ attendance through February 29, 2020 rather than the usual attendance accounting period that typically ends on or before April 15, thereby ignoring declines in attendance after February 29.
  • If your school experienced a material decrease in ADA prior to February 29, it presumably could separately file a request for mitigation.

CSDC presumes that schools that opt to remain “open” during the crisis (these typically are independent study schools that are able to maintain high levels of engagement notwithstanding the crisis) will continue to compute and report ADA using the “normal” procedures.

 

Student Assessment/Testing

U.S. Secretary of Education Betsy DeVos announced on March 20 that the U.S. Department of Education will issue waivers to any state that is unable to assess its students due to the COVID-19 emergency. This should clear the way for California to implement Governor Newsom’s prior executive order* to suspend this spring’s CAASPP testing.

CDE also issued guidance via electronic mail indicating it is doing the following:

  • Suspending all CAASPP testing for this school year.
  • Suspending Summative English Learner Performance Assessments for California (ELPAC) testing. For newly-enrolled students, the initial ELPAC needs to be administered, but the deadline is extended by SB 117 for 45 days and new students should be assessed when they return to school. We presume additional guidance will be forthcoming regarding initial ELPAC assessments, especially if closures extend for the remainder of the school year.
  • Placing the Physical Fitness Test on hold until students return to school.
  • Cancelling the California High School Proficiency Exam (CHSPE) administration for March 21, noting registrants have been notified of the option to take the test in June or request a refund.
  • Placing high school equivalency testing on hold until testing centers reopen.
  • Continuing to provide online access to CAASPP resources, including practice tests, interim assessments, and Digital Library formative assessment tools/resources.
  • Continuing to provide online access to practice tests, and training tests for ELPAC also remain available.

The College Board indicates it will offer an online, at-home testing option for AP students affected by COVID-19. “Based on the number and length of school closures, it’s clear that the usual way of AP Exams are given at schools won’t be possible,” according to the Board. The option will offer 45-minute, online (smartphone, computer, or tablet) assessments focusing on what students typically learn through early March. Optional, mobile-friendly review classes will be available starting March 25. For further information, please visit the College Board’s COVID-19 page.

 

California Department of Education COVID-19 E-Mail Updates

The California Department of Education (CDE) has established a weekly COVID-19 email listserv. Send a blank email to: join-covid19-update@mlist.cde.ca.gov to receive weekly updates from CDE.

 

Special Education

The U.S. Department of Education (USDOE) issued a “Supplemental Fact Sheet” regarding special education on Saturday, stating that federal law “should not prevent any school from offering educational programs through distance instruction.” As we have noted in our prior updates, some schools and districts have opted to provide zero instructional support during the COVID-19 crisis, fearing that federal laws protecting disabled students prevent them from doing so. 

These concerns are well-founded given the strict requirements in federal law to revise individualized education plans (IEPs) when the instruction shifts to online/distance settings and to ensure that the settings and related technology are fully accessible and meet federal requirements to provide free and appropriate education (FAPE) to students with exceptional need. 

Prior federal guidance reiterated a strict line on these matters.  The new Supplemental Fact Sheet speaks to these concerns, stating that:

. . . some educators, however, have been reluctant to provide any distance instruction because they believe that federal disability law presents insurmountable barriers to remote education.  This is simply not true. [emphasis by underlining in the original]. We remind schools that should not opt to close or decline to provide distance instruction, at the expense of students, to address matters pertaining to services for students with disabilities.  Rather, school systems must make local decisions that take into consideration the health, safety, and well-being of all their students and staff.

While the supplemental guidance presumably conveys helpful intent, it’s cold comfort to front-line practitioners and school leaders who are risking lawsuits, compliance challenges, and costly compensatory services if they remain open without strict adherence to complex federal mandates.   

Meanwhile, the CDE posted updated guidance late last week, noting that they are working with federal officials “to determine what flexibilities or waivers might be issued in light of the extraordinary circumstances. Until, and unless, USDOE ultimately provides flexibilities under federal law, LEAs should do their best in adhering to IDEA [federal special education law] requirements, including federally mandated timelines, to the maximum extent possible.” Without stating that CDE will ignore related compliance issues, it hints “the CDE is committed to a reasonable approach to compliance monitoring that accounts for the exceptional circumstances facing the state.” Later parts of CDE’s posting also use similar language, including “to the extent feasible, “to the extent feasible and appropriate,” “seek to comply,” to the greatest extent possible,” etc.

Today, Kristin Wright, CDE’s Director of Special Education issued a letter acknowledging the new federal guidance and reiterating that CDE has formed a workgroup to brainstorm best practices.

The upshot of this guidance is that, short of an act of Congress and the President to waive federal law, federal education officials continue to take a hard line on strict compliance and assert that this is not an “insurmountable” obstacle. California officials are acknowledging the fact that the obstacle is indeed substantial and is tacitly urging schools to continue to provide services as best they can rather than implement hard closures. CSDC is aware of a few charter schools that appear to have successfully amended their IEPs on a rapid track and are indeed continuing to provide services after only a very brief close—stay tuned for details in future updates. 

 

Expanded Federal Family, Medical, and Sick Leave

Congress approved and the President signed into law the Families First Coronavirus Response Act last week. This new law provides substantial new family and sick leave rights to employees related to COVID-19. It takes effect on April 2 and governs employers with fewer than 500 employees. Key provisions include the following:

Emergency Family and Medical Leave (E-FMLA)—expands upon existing federal and state family leave requirements, including the following key features:

  • Provides eligible employees with up to 12 weeks of leave to care for their children (under age 18) to care or their children due to a COVID-19 closure.
  • Eligible employees include those employed by the school for at least 30 calendar days prior to the leave, are unable to work (or telework) due to need to leave to care for a child if the child’s school or place of care has been closed and/or the provider is unavailable, due to a public health emergency.
  • For the first 10 days of E-FMLA, the leave is unpaid unless the employee elects to substitute any accrued vacation, sick, or other paid leave.
  • After the first 10 days, the leave shall be paid by the school pursuant to complex formulas incorporating the number of hours the employee is normally scheduled to work, no less than two-thirds of the employee’s regular rate of pay, not to exceed $200/day and 10 thousand dollars in the aggregate, as specified.
  • Employees taking E-FMLA are entitled to return to their prior position or to be restored to an equivalent position, as specified. Specified exceptions apply to employers with less than 25 employees.

Emergency Paid Sick Leave (E-Sick Leave)—expands upon existing state sick leave requirements, including the following key features:

  • Grants 80 hours of paid E-Sick Leave to full-time employees. For part-time employees, generally provides the number of hours the employee works, on average, over a two-week period. These sick leave hours are in addition to hours normally granted.
  • These sick leave hours are for use by an employee who is unable to work (or telework) due to a need for leave for any of the following reasons:
    • The employee is subject to a federal, state, local or doctor’s quarantine or isolation order related to COVID-19.
    • The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis.
    • The employee is caring for an individual who is subject to a quarantine or isolation order, as specified.
    • The employee is caring for a son or daughter if the school or care provider is unavailable due to COVID-19 precautions.
    • The employee is experiencing substantially similar conditions, as specified, and as identified by federal officials.
    • This E-Sick Leave is available to all employees, without regard to how long the employee has been employed by the school.
    • E-Sick Leave based on the employee’s normal rate of pay, not to exceed $511/day and $5,110 in the aggregate when the leave is for the employee’s own needs and $200/day and $2,000 in the aggregate when caring for another person

The provisions of this new law are very complex, difficult-to-interpret, and seemingly subject to varying interpretation. CSDC provides the above summary not to provide definitive guidance, but instead to alert schools to this new requirement because this additional leave could be extremely disruptive for employers if it allows large numbers of teachers and other vital staff avail themselves of the leave days. 

The law does call for offsetting credits against employers’ Social Security (FICA) tax obligations. The Internal Revenue Service has begun to issue guidance on these tax credits, asserting that “employers receive 100% reimbursement for paid leave pursuant to the Act,” and that health insurance costs are also supposed to be covered. The guidance also commits to “fast funds” including “an immediate, dollar-for-dollar tax offset against payroll taxes” and “where a refund is owed (presumably in cases where large numbers of employees take the leaves), the IRS will send the refund as quickly as possible.” 

CSDC plans to continue to publish regular updates summarizing key COVID-19 developments from a charter school perspective. If you have questions or concerns regarding charter schools and COVID-19, please let us know.


Posted: 03/24/2020