Clarification on Independent Study for Students with Disabilities

On October 5, 2021, the California Department of Education (CDE) issued new guidance on Assembly Bill 130, seeking to clarify a situation that has left so many special education parents in limbo.

AB 130, which was passed in July, requires schools to offer an independent study option for school year 2021–2022 only, to be made available to students whose health would be put at risk by in-person instruction, as determined by their parent or guardian.

Disability Rights California sees this clarification as a reaction to legal complaints. On September 20, 2021, six families of students with intellectual and developmental disabilities filed a civil rights complaint with the U.S. Department of Justice against the State of California for violating the American with Disabilities Act (ADA). The families argue that California school districts are failing to provide needed accommodations in distance learning for students with disabilities who require them. Disability Rights Education & Defense Fund (DREDF) and the Arc of California joined the suit, with the families represented by Disability Rights California (DRC), DREDF, and David W. German at the law firm of Vanaman German, LLP.

The new guidance clarifies the situation and answers several points of confusion. However, it does not answer the central question of the responsibility to educate a student whose parent has determined it is not safe for them to return to school, but whose IEP team has determined that the student cannot adequately be served through independent study. This leaves open the question of discrimination in breach of federal law.

Attorney David W. German told Undivided:

“The recent FAQs clarify that IEP teams should not deny independent study because of the type or severity of a student’s disability, and that special education students in independent study must be given access to the services in their IEPs.

Unfortunately, many districts are ignoring the guidance. Also, it does not help the many students at non-public schools who are being denied distance learning provided by their NPS, or who continue to be denied access to behavioral support through non-public agencies. It also doesn’t help the families who have been forced to waive access to special education services in order for their child to receive instruction through independent study.”

What is clarified:

• For children with IEPs, the independent study option must be an IEP decision and must be consistent with their IEP goals and services.
• Parents can waive the need to hold an IEP meeting, and agree over the phone to an IEP amendment without assembling the whole IEP team.
• Enrollment in independent study is considered a change in placement for a special education student, and therefore requires an agreement between the parent/guardian and the district or Local Education Agency (LEA), either in an IEP meeting or via amendment without a meeting.
• Nothing in the statute supports imposing as a condition for participation in independent study that the student be capable of completing the work independently:

“As with services in classroom-based settings, students who require adult assistance or support may be able to make satisfactory educational progress and to receive substantially equivalent content with such assistance and support. Accordingly, students with exceptional needs may participate in independent study only if the student’s individualized education program provides for such participation..., including provision of special education and related services, *which may include adult assistance or support as appropriate.”*

• If the parent requests independent study, the IEP team must consider this placement in the continuum of placements. Parents can use the sample letter to request independent study posted on DRC’s website.
• “A school district is required to provide prior written notice (PWN) when it refuses to change the placement for a student with a disability.”
• If the district/LEA and parents/guardians disagree on whether independent study is appropriate, they should continue to work together to find an agreeable solution. While working to find the best option, the student needs to be receiving services as indicated on the operative IEP (“stay put”), and the LEA needs to ensure that services are being provided according to the IEP. If an LEA and parents/guardians cannot come to an agreement regarding a student’s placement, the parties can utilize the dispute resolution processes. The California Department of Ed offers Alternative Dispute Resolution and Parent Training Information Centers as a resource.
• AB 130 does not apply to preschool, but does apply to 18–22 services under IDEA.