Important Distance Learning Updates from DOE for SpEd Students

On September 28, 2020, the Department of Education (DOE) and the DOE’s Office of Special Education Programs (OSEP) each issued question-and-answer documents to address the operation of K–12 schools during the Covid-19 pandemic. Here, special education attorney Grace Clark breaks them down for us and explains what they mean for special education students. For more background, be sure to check out our legal panel on distance learning, legal rights, and FAPE, as well as more information about SB 98 and IEPs.

The DOE expects school districts to make every effort to return to the classroom and provide equal access to education to all children in a way that fully complies with the Individuals with Disabilities Education Act (IDEA) and other civil rights laws. Until then, this guidance is intended to provide clarity to the public regarding legal requirements and agency policies during distance learning and reopening:  


Reopening

  • Schools’ reopening plans may not prioritize students based on race, color, or national origin.
     
  • Schools should consider their ongoing requirements to provide a free, appropriate public education (FAPE) and avoid discrimination on the basis of disability when deciding whether to allow students with disabilities to return to campus before the general student population does.
     
  • The CDC advises schools to include the appropriate use of cloth face coverings as part of their reopening plans. The DOE understands that face coverings can be challenging and impractical for some students, and that the face-covering requirement could impede these students’ ability to receive FAPE. Schools should make reasonable modifications to their policies and procedures regarding the use of face coverings when those modifications can be made consistent with the health and safety of all students and staff, and are necessary to avoid discrimination on the basis of disability


FAPE

  • State- or district-wide policies that reduce or limit services specifically for students with disabilities without regarding the individual student’s needs violates section 504 of the Rehabilitation Act of 1973.
     
  • Schools providing distance learning still have to comply with Section 504 and Title II of the Americans with Disabilities Act. This means that schools have to make individualized decisions about how to provide FAPE to students with disabilities. Not every failure to implement a part of an IEP or section 504 plan will constitute a denial of FAPE, however. Whether a student has been deprived of FAPE will be determined on an individual basis after considering all relevant circumstances.
     
  • Schools should make individualized determinations about whether students’ IEPs or 504 plans require revision in order to continue to provide FAPE during distance learning.

 

Assessments

  • If a school district is offering only distance learning, it must still conduct evaluations and reevaluations within a reasonable time frame under the current circumstances, and in compliance with the IDEA and section 504. (Read on for further guidelines on evaluations issued by OSEP.)  
     
  • Where an assessment requires an in-person component that is not possible due to social distancing measures, schools should make a good faith effort to conduct the assessment virtually, to the extent that it can be administered by trained personnel in conformance with the test producer’s instructions. Alternatively, parents and the school can agree to postpone testing until it can be done safely in person. (More guidelines on virtual assessments have been issued by OSEP — see below.)

 

Waivers

  • School districts may not require parents to sign waivers before the district delivers online services to students with disabilities.


OSEP’s question-and-answer document, which is broken down by Grace Clark below, is intended to help schools and parents identify steps they can take to ensure that children with disabilities are receiving an educational program that meets their unique needs. 

OSEP recognizes the new and unexpected challenges schools are facing in providing meaningful instruction to children with disabilities during the pandemic. Schools in different communities are being impacted in different ways, and are using various instructional models to deliver special education and related services to children with disabilities. These options can include distance learning, in-person attendance, or a combination of both. Regardless of the delivery approach, schools and IEP teams remain responsible for ensuring that FAPE is provided to children with disabilities.


Assessments

  • During the pandemic, states have the flexibility to establish their own timelines within which the initial evaluation must be conducted through regulation or policy, or they can choose to adopt the timeline mandated by the IDEA, which provides that an initial evaluation must be conducted within 60 days of receiving parental consent for the evaluation. The IDEA regulations provide exceptions that permit extension of that time frame if a parent repeatedly fails or refuses to produce the child for assessment, or if the child enrolls in a new school district after the time frame began. 
     
  • Federal regulations in the IDEA require the development of an IEP within 30 days of determining that a child needs special education and related services. They also require that each child’s IEP be reviewed periodically, but not less than annually, to determine whether the annual goals are being achieved. States that are unable to conduct face-to-face IEP meetings must still conduct initial and annual IEP meetings through alternate means, such as over the phone or through a video call.
     
  • The IDEA requires reevaluation to occur at least once every three years, unless the parent and school agree it is unnecessary. Evaluations should be based on personal observation, whether in person or through videoconferencing. Schools should investigate all appropriate assessment instruments and tools to see if some can be administered completely remotely during the pandemic. Schools should work with test developers to determine which tests can be given remotely without invalidating the results. All tests used must be valid and reliable, and be administered in accordance with the instructions provided by the creator of the assessment. Learn more about assessments during the pandemic here.


IEPs

  • Schools must take steps to ensure that each child with a disability has an IEP in effect at the start of the 2020–2021 school year. All children with disabilities must continue to receive FAPE and must have the opportunity to meet challenging objectives. IEP teams should identify how the special education and related services included in the IEP will be provided, and should consider a variety of instructional methods and settings. The IEP team should also consider alternate instructional methods, such as online instruction, teleconference, video conferencing, or parent consultation, as changes to the instructional model may shift between distance learning, hybrid learning, and in-person learning during this school year. (You can read more about IEPs and distance learning here.)
     
  • IEP teams must include the parent(s), at least one regular education teacher if the child is participating in the regular education environment, at least one special education teacher, a representative of the district, someone who can interpret the results of any evaluations, other individuals who have knowledge or expertise of the child (at the discretion of the family), and the child when appropriate. Participants may be excused if the parent and school agree in writing that their area of expertise is not being discussed at the meeting. If the IEP meeting involves modifications to or discussions about a participant’s area of expertise, they may be excused if the parent and school agree in writing, and if the participant submits written input into the development of the IEP prior to the meeting.
     
  • Parents and the IEP team may agree to make an IEP amendment without meeting as long as the written amendment does not take the place of the annual IEP meeting. 

 

Extended School Year (ESY)

  • Extended School Year (ESY) services remain available if they are required to provide FAPE. They are intended as prospective, and should not be used to compensate for a past denial of FAPE. The determination of whether a child requires ESY must be based on individual needs and not the category of the child’s disability. A child’s entitlement to ESY continues to apply even if schools are closed due to Covid-19. Although ESY services are typically provided during the summer months, schools should consider providing ESY to children during the normal school year, school breaks, or vacations, if the services were not able to be delivered during the summer of 2020.

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