As we enter fall 2020, the COVID-19 pandemic remains widespread and dangerous and is deeply affecting all important American institutions, including education, especially special education. Because of the difficulties districts are having providing special education and related services, litigation regarding how districts are responding to COVID-19 is increasing.
Special Education Guidelines for Reopening Schools
The U.S. Department of Education's Office of Special Education and Rehabilitative Services (OSERS) is the best portal for national policy surrounding COVID-19 and special education. As mentioned in our article last spring on special education and school closures due to COVID-19, OSERS initially released information on implementing IEP plans and 504 plans in its March 2020 questions and answers and supplement fact sheet. The key findings from these publications remain in place as schools try to open in fall 2020, as follows:
- If your school closes for a time and does not provide any educational services to the general student population, the district does not have to provide IEP programs/services.
- If your district continues to provide some kind of education for the general student population—likely in almost all cases—it must "ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE (a free, appropriate public education)." Districts "must ensure to the greatest extent possible" that your child is "provided the special education and related services identified in his/her IEP."
- The term "equal access" does not make it clear as to whether all or only some of a child's IEP must be implemented. While there is no absolute guarantee that your child will have the entirety of the IEP implemented, the term "greatest extent possible" does provide some supportive language if you must file a complaint and/or go to due process over the failure of the school district to provide an element of your child's IEP.
- Distance learning options—virtual education—are allowed for students needing special education and related services. A district can consider "alternative locations as well as online instruction."
- All IEP, due process, initial evaluations, reevaluations, and eligibility requirements under the IDEA remain in force. The parties, however, can agree to extend timelines and, for example, to hold IEP meetings virtually.
- Health considerations can affect many aspects of your child's IEP, such as the location of any program, peer opportunities, and where/how related services are provided.
This summer, OSERS issued additional sets of questions and answers regarding Part B of the IDEA (for 3- to 22-year-olds) and Part C of the IDEA (birth to 2-year-olds). The findings are generally the same, although OSERS has released a separate document, "Initial Evaluation and Assessment Timeline," for Part C only. None of these publications changed what OSERS said in March. The key takeaways from these new documents are:
- An electronic or digital signature is allowed for IEPs and initial or follow-up evaluations.
- A district must always provide you with written notice—called "Prior Written Notice," or PWN—before it proposes to or refuses to initiate or change the "identification, evaluation, educational placement, or the FAPE" of a child in special education. Prior to COVID-19, the law stated that a district had to provide a "reasonable amount of time" for the notice before any such action was or was not taken. Reasonable time, of course, is not precise. The pandemic and how it has impacted your child's district may factor into how "reasonable time" is calculated.
- However the amount of notice you are given is determined, it must be a reasonable amount of time, and notice must happen before anything is (or is not) done regarding evaluation and the IEP or provision of FAPE.
- Regarding your absolute right to receive copies of your child's records, the requirements remain in place, but OSERS has noted that the parties may need to agree to a mutually agreeable timeframe and method for providing those records, particularly given social distancing and safety protocols.
You can find links to other helpful information on the COVID resource page of the Department of Education's website.
Your state department of education and your school district also have or should have information on how the pandemic impacts the provision of special education. Find out what your local district is doing; your child's teacher and/or service provider might be a source of information. And it's always helpful to talk to other parents of special education children in your area.