CDE Releases Learning Continuity & Attendance Plan Template; Elementary School In-Person Instruction Waivers; and In-Person Special-Education Services During Closure(?)


On July 31, 2020, the California Department of Education (CDE) released the Learning Continuity and Attendance Plan template, instructions for which were made available on August 4, 2020.  In addition, on August 3, 2020, the California Department of Public Health (CDPH) released “Schools Guidance FAQs”, and an explanation of the “Reopening In-Person Learning Elementary Education Waiver Process” for elementary schools (grades transitional kindergarten through sixth). 

Senate Bill 98 (which included now-operative Education Code § 43509(f)) required the Superintendent of Public Instruction to develop a template for a learning continuity and attendance plan by August 1, 2020.  The governing boards of school districts, county offices of education, and charter schools must adopt learning continuity and attendance plans by September 30, 2020, following a procedure prescribed by statute.  (Education Code § 43509(a)(1)(A).)  Because of the time-intensive statutory requirements for permissible adoption of learning continuity and attendance plans, local educational agencies (LEAs) should retrieve and review the template and instructions as soon as possible.

On July 17, 2020, the CDPH issued the “COVID-19 and Reopening In-Person Learning Framework for K-12 Schools in California, 2020-2021 School Year,” which states that “California schools have been closed for in-person instruction since mid-March 2020 due to the COVID-19 pandemic.  School closures to in-person instruction were part of a broader set of recommendations intended to reduce transmission” of COVID-19.  [emphasis added]  The July 17 guidance prompted questions regarding the permissibility of LEAs’ conduct of in-person special-education assessments and implementation of related services in accordance with pandemic safety guidelines (described here).  As a result, the “Schools Guidance FAQs” includes the following question and response:

If a school is closed for in-person instruction, is it permissible for a small set of students—such as students with disabilities and other students with special needs—to receive in-person instruction on campus?

More detailed guidance on conditions under which permissible in-person instruction and services for small sets of students, such as those provided pursuant to an individualized education program (IEP), is forthcoming.

It is not clear when the detailed guidance will be available.

The CDPH provides guidelines with respect to the process for requesting elementary school waivers for in-person instruction, as well as a Waiver Application Cover Form.  A district superintendent, private school principal, and charter school executive director can apply for a waiver, which will be determined by local health officers in consultation with the CDPH.  As part of the waiver application process, schools must consult with labor, parent, and community organizations, and must publish reopening plans via LEA website (“or equivalent”).  Reopening plans must address several topics related to health and safety, in a manner consistent with guidance from the CDPH and the local health department.  Those topics include: cleaning and disinfection; cohorting; movement to, from, and within the school; face coverings and other essential protective gear; health screenings for students and staff, etc.

The CDPH recommends against waivers for elementary schools located within local health jurisdictions with 14-day rates that exceed 200 cases per 100,000 persons.  As of August 5, 2020, counties with case rates above this threshold include Colusa, Fresno, Glenn, Imperial, Kern, Kings, Los Angeles, Madera, Marin, Merced, Mono, Monterey, Napa, Orange (just barely), Riverside, San Benito, San Joaquin, Santa Barbara, San Bernardino, Solano (just barely),  Stanislaus, Sutter, Tulare, and Ventura.  Counties with case rates below the threshold include Alameda, Alpine, Amador, Butte, Calaveras, Contra Costa, Del Norte, El Dorado,  , Humboldt, Inyo, Lake, Lassen, Mariposa, Mendocino, Modoc, Nevada, Placer, Plumas, Sacramento, San Diego, San Francisco, San Luis Obispo (just barely), San Mateo, Santa Clara, Santa Cruz, Shasta, Sierra, Siskiyou, Sonoma, Tehama, Trinity, Tuolumne, Yolo, and Yuba.  ( 

By way of a single example, on August 4, 2020, the Los Angeles County Department of Public Health announced that for now, it will not consider any applications for waivers allowing elementary schools to reopen because of high COVID-19 case rates of approximately 355 per 100,000 residents. 

We will continue to update you regarding guidance specific to serving California students who are eligible for special education.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

© 2020 Atkinson, Andelson, Loya, Ruud & Romo



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