New Special Education Laws

Best Best & Krieger LLP

Best Best & Krieger LLP

Part 2: California Laws Impacting Schools and School Districts for 2020

Last year brought many changes to the legal landscape affecting educators. In this Best Best & Krieger LLP Legal Alert series, we look at some of the most critical changes to the laws impacting schools and school districts. Below are the key developments in special education law to keep in mind as the second half of the 2019-2020 school year begins. All laws took effect Jan. 1 unless otherwise noted.

Special Education Legislation

AB 605 Special education: assistive technology devices
A local educational agency must provide the use of school-purchased assistive technology devices in the home or community if the student needs access in order to receive a free appropriate public education, known as a FAPE. A local agency must also make the assistive technology devices available to a student for up to 2 months when the student moves out of district into a new LEA or until the new LEA secures access to the assistive technology devices.

AB 947 Visually impaired pupils: expanded core curriculum
Local education agencies may consider the expanded core curriculum when developing individualized education programs, or IEPs, for students who are blind, have low vision or are visually impaired. The expanded core curriculum includes compensatory skills, such as braille and concept development, orientation and mobility, social interaction skills, career technical education, assistive technology, independent living skills, recreation and leisure, self-determination, and sensory efficiency, which may be provided before or after school hours. Orientation and mobility evaluations must be provided by an orientation and mobility specialist.

AB 988 Teacher credentialing: out-of-state prepared teachers: education specialist credential
Out-of-state educated teachers pursuing an education specialist credential can demonstrate an area of concentration based on 2 years of experience in California.

AB 1172 Special education: nonpublic, nonsectarian schools or agencies

  • Beginning in the 2020-21 school year, all staff of nonpublic schools and agencies who have contact with students during the schoolday are required to be trained in behavioral practices and interventions. The contracting local educational agency must verify the nonpublic school or agency’s compliance with the training requirements via annual certification documents.
  • Beginning in the 2021-22 school year, the contracting local educational agency must, at a minimum, conduct an onsite visit prior to placing any students in the nonpublic school and at least one onsite monitoring visit during each school year once a student is placed in the nonpublic school. The onsite monitoring visit must include a review of services, progress toward goals in the IEP and behavior intervention plan, or BIP, observation of the student during instruction, and a walkthrough of the facility. Additional reporting criteria for these onsite monitoring requirements will be published by June 30, 2020.
  • Beginning in the 2021-22 school year, administrators of nonpublic schools must hold, or be in the process of obtaining, specific credentialing, licensing, or educational experience. A person qualified to design behavior interventions under 5 CCR 3051.23 must be onsite during school hours.
  • Nonpublic schools and agencies must notify the California Department of Education and the local educational agency of any student-involved incident in which law enforcement was contacted, in writing, within one business day.

SB 223 Pupil health: administration of medicinal cannabis: schoolsites (Jojo’s Act)
A school board may adopt a policy to allow a parent or guardian of a qualified student to administer medicinal cannabis to that student at a schoolsite. The medicinal cannabis may not be in smokeable or vapeable form. The law does not require a school board to adopt such a policy. But, if the board does adopt a policy, it must include provisions that the parent must provide valid written medical recommendation for medicinal cannabis for the pupil to be kept on file at the school, the parent must sign in at the schoolsite, parent’s administration shall not disrupt the educational environment or expose other students, and the medicinal cannabis must be removed by the parent from the schoolsite.

Judicial Decisions

  • In B.H. v. Manhattan Beach Unified School District, the U.S. Ninth Circuit Court of Appeals determined that, although a student may receive financial assistance for a placement at a residential treatment facility through another agency, a school district is required to fund placement under the student’s IEP due to its obligation to provide the student a FAPE under the Individuals with Disabilities Education Act.
  • In Paul G. v. Monterey Peninsula Unified School District, the Ninth Circuit determined that a student could not pursue claims under section 504 of the Rehabilitation Act of 1973 or under the Americans with Disabilities Act against the California Department of Education because the student failed to exhaust administrative remedies when he settled his underlying due process case with the school district. The court held that, because the student’s claims relate to the provision of FAPE under the IDEA, the “only way to obtain an administrative ruling on his claim that he was denied a FAPE” and to therefore exhaust the administrative remedies, was to pursue a due process case through final ruling by the Office of Administrative Hearings. Under this decision, a student who settles a due process case would be precluded from bringing FAPE-related claims in court.

Special Education Outcomes

The California Legislative Analyst’s Office released a report titled Overview of Special Education that aims to facilitate fiscal and policy discussions to improve special education outcomes. Some selected highlights from the report:

  • 12.5 percent of students in California public schools received special education in 2017-18, an increase from 10.8 percent in the early 2000s.
  • The number of students with severe disabilities has doubled since the 2000-01 school year.
  • Students identified with autism was 1:600 in 1997-98, which has increased to 1:50 in 2017-18.
  • The cost of educating a student with disabilities is approximately $26,000 annually, compared to $9,000 for a student without disabilities.
  • Between 2007-08 and 2017-18, special education costs increased from $10.8 billion to $13 billion.
  • Despite increased spending, outcomes for special education students are low overall. For special education students, state achievement test scores are lower than that of English learners and low-income students; four-year graduation rates are lower than other student groups; suspension rates are double that of other student groups and there is a high rate of chronic absenteeism, with one in five students with disabilities absent for 10 percent or more of the school year.

Also in this Series:

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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