Last week, the Connecticut State Department of Education (“CSDE”) issued guidance regarding remote learning and dual instruction, clarifying recent statutory changes enacted by the Connecticut General Assembly during its 2022 legislative session. We previously summarized these changes and other changes to the statutes that affect public education in Connecticut in our 2022 Education Legislation Summary, and we discussed these updates in our 2022 Education Legislation Summary Workshop. As districts across Connecticut seek to understand and implement the new laws, a few recurring questions have surfaced. These frequently asked questions (“FAQs”), and our responses, follow.

• We know that boards of education can authorize remote learning beginning in the 2022-2023 school year for high school students, as long as certain statutory requirements are met. We also know that “dual instruction” is prohibited in remote learning models.  But what if a student contracts COVID-19 and cannot come to school?  Can we provide them online access to the classroom, even though we don’t otherwise allow remote learning?

Pursuant to Connecticut General Statutes Section 10-4w, boards of education may authorize remote learning, defined as “instruction by means of one or more Internet-based software platforms as part of a remote learning model,” beginning with the 2022-2023 school year for students in grades nine through twelve. In implementing remote learning pursuant to the statute, school districts must (1) provide instruction in compliance with standards for remote learning developed by the CSDE, (2) adopt a policy regarding student attendance during remote learning that complies with certain statutory requirements, and (3) prohibit dual instruction, defined as “the simultaneous instruction by a teacher to students in-person in the classroom and students engaged in remote learning.”

As we emerge from the pandemic, questions have surfaced about whether, when, and how school districts can grant students remote access to the classroom, in programs other than a “remote learning model” authorized by statute. Last week, the CSDE issued Guidance on Remote Learning and Dual Instruction, clarifying the following:

• Districts are prohibited from implementing dual instruction in remote learning models authorized by Section 10-4w of the Connecticut General Statutes.
• Districts may, but are not required to, provide students who are at home because of a documented illness the opportunity to “virtually monitor” classes as part of “a one-way process in which a student can essentially audit what is happening in the classroom but cannot interact” with their teachers or classmates virtually. Such students must still be deemed absent for attendance purposes.
• Districts may use shared intra-district and inter-district programming to reduce racial isolation and enhance learning opportunities, particularly for students in underserved districts or those in systems with limited advanced-course opportunities. Such programs predate the enactment of the remote learning legislation and do not constitute the “systematic, highly structured, and detailed” remote learning model required by Section 10-4w.”
• If a Planning and Placement Team (“PPT”) determines that interactive engagement with teachers and classmates constitutes the least restrictive environment in which the student could receive a free appropriate public education as required by the Individuals with Disabilities Education Act (“IDEA”), or if a Section 504 Team determines that a student with disabilities requires remote, interactive learning as an accommodation to access the child’s education in the least restrictive setting under Section 504 of the Rehabilitation Act of 1973 (“Section 504”), school districts may utilize dual instruction in order to meet their obligations to provide students with individualized instruction and/or accommodations under federal law.
• We understand that new legislation allows teachers to request a behavior intervention meeting with the school’s crisis intervention team. Who is supposed to be at that meeting? Is it the same as a PPT?

Under prior law, for each school in the district, boards of education have been required to identify and train members of a crisis intervention team (consisting of a teacher, administrator, paraprofessional or other school employee, designated by the school principal and who has direct contact with students) to respond to incidents in which the use of physical restraint or seclusion may be necessary. Under the new law, this team is now tasked with an additional responsibility: holding a behavior intervention meeting when requested by a teacher to address student behavior that has caused (1) a serious disruption to other students’ instruction or (2) self-harm, or physical harm to the teacher, another student, or staff in the teacher’s classroom. The purpose of the behavior intervention meeting is to identify resources and supports to address the student’s social, emotional and instructional needs.

Although the statute does not provide much detail regarding how these meetings should be conducted, when a behavior intervention meeting is called because of a student’s behavior, districts should be mindful of their child find obligations under the IDEA and Section 504 and assess whether referral to a PPT or Section 504 Team would also be appropriate.

• We know that, with limited exception, districts must include at least 20 minutes for physical exercise for students enrolled in elementary school, and now there are new rules about when that time can be restricted. What is the definition of “elementary school” in Connecticut?  Do districts need to provide 20 minutes of recess to students in Grade 5 who attend an intermediate or middle school, not an elementary school?  Do we need to allow for recess on early release days?  And do the new requirements regarding when students can be prevented or restricted from physical exercise apply to field day?

Conn. Gen. Stat. Sec. 10-221o(a) directs boards of education to require their schools to “(1) offer all full day students a daily lunch period of not less than twenty minutes, and (2) include in the regular school day for each student enrolled in elementary school time devoted to physical exercise of not less than twenty minutes in total, except as provided by a [PPT] in accordance with the Individuals With Disabilities Education Act.”

A prior version of the statute required districts to provide twenty minutes of physical exercise to students in grades kindergarten through grade 5. As noted above, the current statute requires districts to afford such time to students enrolled in elementary school. However, the statute fails to define “elementary school” and boards of education throughout Connecticut organize their schools in myriad ways. Indeed, elementary schools may educate students in Grades K-6, K-4, or even K-3. Given that the 2013 revision tweaked the requirement of twenty minutes of physical exercise from students in K-5 to students “enrolled in elementary schools,” it is reasonable to conclude that the requirement now applies to schools designated as elementary schools by each board of education. Thus, a fifth grader enrolled in an intermediate or middle school would no longer fall within the statute’s purview.

Whether elementary schools need to provide for recess on early dismissal days is another matter. As noted above, the statute provides that twenty minutes of physical exercise must be included in the “regular school day” for students in the elementary schools but fails to define this key term. In another context, the CSDE’s Action Guide for School Nutrition and Physical Activity Policies addresses the sale of beverages at schools after the end of the regular school day and defines “regular school day” as “the period that begins with the arrival of the first child at school and ends after the last instructional period.”  While not definitive, this guidance suggests that a regular school day need not be a full day of school, and may include early release days. In such instance, recess should be provided to all students attending elementary schools in the district, even if they are scheduled for early dismissal.

Finally, it bears emphasis that the new requirements address restrictions on time devoted to physical exercise, which time must be provided in accordance with Section 10-221o. Field day falls outside the scope of the statute, and as long as all other requirements are met, restrictions on participation in field day are not prohibited by the new law. However, districts are advised to keep in mind the legislature’s recent emphasis on children’s health, including but not limited to the newly designated “Get Outside and Play for Children’s Health Day,” which is designed to raise awareness about children’s mental health and the positive effect of being outdoors for children’s mental health and wellness.

• We understand that we need to provide free menstrual products in our schools beginning next year. Is this tied to grant funding?  Does this include elementary, middle, and high schools?  Can we provide the products in the nurse’s office, as long as they are accessible to all? 

Beginning September 1, 2023, boards of education must provide free menstrual products in women’s restrooms, all-gender restrooms, and at least one men’s restroom that are “accessible to students in grades three to twelve, inclusive, in each school under the jurisdiction of such boards.” Such products must be provided in a manner that does not stigmatize any student seeking menstrual products, pursuant to guidelines to be posted on the Department of Public Health’s website. Although the guidelines have not been issued yet, the statute makes clear that the menstrual products must be made available in the restrooms identified above, and not in the nurse’s office.

This requirement is not tied to grant funding. However, the new law authorizes boards of education to (1) accept donations of menstrual products and grants from any source for the purpose of purchasing such products, and (2) partner with a nonprofit or community-based organization in order to meet the new statutory requirements.

• We know that, starting this school year, we need to distribute an electronic copy of the guidelines on identifying and reporting child sex abuse developed by the Governor’s Task Force on Justice for Abused Children. Where can we find these guidelines?

In 2021, the Governor’s Task Force on Justice for Abused Children (“Task Force”) was directed to develop guidelines addressing a range of issues, including but not limited to (i) the stages of grooming typically employed by those who engage in child sexual abuse, and (ii) behaviors that victims of child sexual abuse may engage in or exhibit as the result of such sexual abuse. In 2022, the legislature mandated that boards of education provide employees, board members, and parents and guardians with an electronic copy of these guidelines. Such can be found on the Task Force’s website and are available here: Connecticut Grooming Info Sheet.

If you have specific questions about the new legislation, please contact Dori Pagé Antonetti at dantonetti@goodwin.com, Jessica Ritter at jritter@goodwin.com, Kelsey N. Scarlett at kscarlett@goodwin.com, or any member of our School Law Practice Group.