March 14, 2020
Sacramento, CA – Late yesterday afternoon, Governor Newsom’s office posted a second significant executive order (N-26-20) to protect school funding during the COVID-19 crisis, but also directing schools to continue to employ their staff, to provide students with high quality instruction and meals, and for the Departments of Education and Health to issue more detailed directives by March 17.
The order comes on the heels of school closures spreading across California, including the state’s largest districts and many individual charter schools, and signaling that Governor Newsom and State Superintendent Thurmond are struggling to keep up with the pace of events as local officials take closure and other major decisions with limited guidance from the state.
Key Provisions of New Executive Order
The new executive order contains several key provisions, some of which may require schools that have already taken difficult decisions to reverse or change course. The key provisions include the following:
The full version of the executive order may be downloaded here.
A rapidly-growing number of districts and charter schools have announced closures including the Los Angeles, San Diego, Sacramento, San Francisco and other large and small school districts. CSDC presumes that by the third week of March, the vast majority of charter schools and districts will have closed—at least for a few days if not weeks. The details vary, but most seem to be closing starting March 16 or thereabouts. Some are specifying particular dates for reopening while others are open-ended. Some are announcing plans to offer various forms of instructional support ranging from packets for students to take home to online and televised options. Many are planning to offer some form of free meal support.
Many LEAs have taken various decisions in advance of this guidance, some of which may conflict with it. CSDC offers the following considerations and information that may help charter schools assess their current position and make difficult decisions.
CSDC does not claim to be in a position to offer specific guidance for your school given the many unknowns and specifics of a given situation. For these and other reasons, CSDC suggests close communication and coordination with your charter authorizing agencies, other districts in your area, county health departments, and county offices of education.
Since we can anticipate additional guidance from the CDE, HHS, and others, schools presumably should review the Governor’s new order and assess any areas where they are not in alignment and either begin tweaking or changing course, or await further guidance on topics where additional guidance is likely.
CSDC also has begun to assemble a folder of electronic resources and sample documents and will release that shortly. Please also feel free to contact us if you have additional questions, concerns, or suggestions.
The Governor issued an executive order on March 12 offering additional flexibility with respect to the Brown Act’s (open meetings law’s) teleconferencing provisions. See CSDC’s COVID-19 Update #3 for further information.
CSDC also notes that while the Brown Act generally calls for 72-hour notice for “regular” meetings, it also allows for “special” meetings upon 24-hour notice, and “emergency” meetings with just one-hour prior notice.
Emergencies under this law include a “work stoppage, crippling activity, or other activity that severely impairs public health, safety, or both, as determined by a majority of the members of the governing body.” If media sources (TV, radio, newspaper) have requested notice of your meetings, you must also give them one-hour notice of emergency meetings. The notice shall include the fact of the holding of the emergency meeting, the purpose of the meeting, and any action taken as soon after the meeting as possible. The minutes of the meeting, a list of persons that the body notified or attempted to notify, a copy of the rollcall vote, and any actions taken at the meeting shall be posted for a minimum of 10 days in a public place as soon after the meeting as possible.
Human Resources & Labor
School closure and non-closure can both raise various challenging human resources questions. Schools will need to decide which staff will continue to work and related compensation and other issues. In light of the new executive order provision calling for an LEA to “continue to pay its employees,” schools that close and that plan to take advantage of laws protecting ADA-related funding presumably should arrange to comply with this mandate.
School employers may also want to review their sick days policies and monitor any changes to state or federal law that may mandate additional paid sick days. Schools presumably should also be mindful of the requirement that exempt employees earn at least twice the minimum wage, as tested monthly, or may need to shift to hourly status. Those with bargaining units (unions) may need to discuss and perhaps negotiate over various issues.
For those staff who continue to work, and we presume most will in some fashion, there may be additional needs for childcare and other supports. If staff continue to work onsite, consider how to ensure social distancing and other sound practices to prevent the spread of COVID-19—especially in light of the executive order provision calling for schools to arrange for supervision of students during normal school hours to the extent practicable.
Instructional Time and Average Daily Attendance Requirements
Charter school funding laws generally require charter schools to offer at least 175 days of instruction, offer specified numbers of annual minutes of instruction (these very by grade span), and meet other requirements that are “conditions of apportionment.” Emergencies can preclude schools from meeting these requirements.
As we noted in our first COVID-19 update, current law provides for two forms of protection for school funding during either (1) school closure and/or (2) a material decrease in ADA. Under “normal” emergencies, schools seeking emergency ADA credit due to closure and/or a material decline in attendance must ultimately secure approval of their applications from the district superintendent and county superintendent. In effect, schools that are closing and/or experiencing reduced attendance need to “bet on the come” that local and state officials will grant approval of emergency ADA requests after-the-fact.
We presume that the Governor’s new executive order dispenses with these approval requirements with respect to closure, but not necessarily with respect to a material decrease in ADA for schools that remain open. Furthermore, for schools that close, the new executive order seems to make the continued funding related to closure contingent on the LEA continuing to meet the specified terms of the order (e.g., continue providing instruction, provide school meals, arrange for student supervision, continue to pay employees). Thus, charter schools that close presumably should carefully assess their alignment to the specific terms of the executive order and any related guidance from the CDE and other state agencies.
Shifting from Traditional Instruction to Online/Independent Instruction
For “classroom-based” schools, shifting to online or “independent study” forms of instruction is, at least in theory, an option. Doing so, however, typically raises numerous practical and compliance challenges. Some of the challenges may include, but are not necessarily limited to the following:
The executive order appears to attempt to mitigate these concerns (“If an LEA closes its schools to address COVID-19, the LEA is not prohibited from offering distance learning or independent study to impacted students. To the extent that any state or local law might have been interpreted to the contrary, that law is waived.”) CSDC presumes that this is intended to give schools authority to provide independent study notwithstanding the usual requirements and that strict compliance with laws governing independent study, nonclassroom-based instruction, and the like are waived—flexibility CSDC requested of the Governor last week.
Whether schools using this flexibility will need to partially or fully adhere to portions of the independent study laws is not explicitly clear and CSDC presumes that further guidance from CDE will be available by March 17. Offering independent study also raises equity and special education compliance issues that require further clarification (more on this below).
Should Nonclassroom-Based Schools Close Too?
In the absence of controlling guidance to the contrary (e.g., an order by officials to close), and depending on local circumstances, it may be possible for nonclassroom-based schools to continue to operate. The new executive order certainly seems to encourage remaining operational to the degree practicable while also implementing strong public health precautions.
Here too, however, there exist various challenges. Many nonclassroom-based schools, for example, offer “blended” programs and presumably should carefully consider whether to cancel group activities at the school and whether services provided by vendors present a public health risk. It may also be wise to shift from in-person to online or telephonic meetings between teachers and students/parents. At a minimum, such schools presumably should implement social distancing and other precautions if they continue to operate. Such schools presumably would also need to continue to deliver required special education and related services (see below).
Child Nutrition and Food Services
The new executive order calls for providing school meals in noncongregate settings through the Summer Food Service Program and Seamless Summer Option. While most charter schools are required to provide meals that are consistent with federal child nutrition guidelines, not all required to do so. Even among charter schools that are required to offer such meals, many do not participate in the Summer Food Service Program and/or Seamless Summer Option. This could present a major challenge absent further clarification or flexibility.
The federal government has granted the California Department of Education a waiver to allow those entities that are currently authorized to provide summer meal programs to provide meals to students during a Coronavirus-related closure as if it were a summer meal program. Many are planning to offer take-away or similar options from school and/or non-school distribution sites or vehicles/vans. Consult with your food services authority (FSA) for additional details on options.
The Centers for Disease Control has information on cleaning of school facilities online here.
The U.S. Department of Education has issued informal guidance on serving students with exceptional needs during the COVID-19 crisis. It notes that “if an LEA closes its schools to slow or stop the spread if COVID-19, and does not provide any educational services to the general student population, then an LEA would not be required to provide services to students with disabilities during that same period of time. Once a school resumes, the LEA must make every effort to provide special education and related services to the child ...”
The Department’s memo goes on to note that “the Department understands that there may be exceptional circumstances that could affect how a particular service is provided” that “an IEP team ... would be required to make an individualized determination as to whether compensatory services are needed.” The memo also states that “if an LEA continues to provide educational opportunities to the general student population during a school closure, the school must ensure that students with disabilities also have equal access to the same opportunities including the provision of FAPE” [Free and Appropriate Education].
The National Center on Special Education in Charter Schools also has posted guidance on serving students with exceptional needs during school closure and related issues.
The upshot of this guidance and the underlying law is that school leaders must continue to provide FAPE during times of crisis and that interim offerings of “educational opportunities” must ensure equal access and the same opportunities to students with exceptional needs (including those with IEPs and Section 504 plans). It may not be feasible to achieve this, even with herculean effort during the crisis. If not, the above-referenced memo from the U.S. Department of Education notes that schools may need to offer compensatory services after the crisis subsides.
These laws and guidance had led many LEAs to fully close and sharply limit their offerings during closure for fear of discriminating against students with exceptional needs. The Governor’s new executive order, however, seems to press LEAs to “continue delivering high-quality educational opportunities to students to the extent feasible....” It also calls for the CDE to issue guidance on ensuring FAPE for students with exceptional needs, so schools presumably should anticipate further guidance on point in the next few days.
Student Privacy/Records, FERPA
The U.S. Department of Education has also posted guidance on ensuring student privacy during the COVID-19 outbreak. The key takeaway is that the usual student privacy expectations are not waived, that schools generally should not identify the name or personal information of students who have COVID-19, etc.
Budget, Finance, and Cash Flow
See our preliminary guidance and stay tuned for more.