Hello all! You’re all doing the impossible! You’re educators. You do the impossible every day. And now you’re doing it to a large degree from home. You are pressing on for the same reason you got started as educators – because you want to help children. We’re here to support you in determining and meeting your legal obligations, whether it is with normal, day-to-day questions, or in this surreal time.
On March 13, 2020, we issued a legal alert on the U.S. Department of Education’s (USDOE) Questions and Answers on Providing Services to Children with Disabilities during the Coronavirus Disease 2019 Outbreak. That document generated a number of further questions, which prompted the U.S. Department of Education’s Office for Civil Rights (OCR) and Office for Special Education and Rehabilitative Services to issue a Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities on Saturday, March 21, 2020. This new guidance document addresses the challenges of providing special education services and programming to a student body that is not in school and includes as an attachment a list of timelines and whether they can be extended.
- Extraordinary Times – Extraordinary Flexibility
First and foremost, the USDOE is acknowledging the need for as much flexibility as possible. While school districts are responsible for providing a FAPE to Students with Disabilities, the Department acknowledges the need to do so “consistent with the need to protect the health and safety” of both Students with Disabilities and professional staff. “The determination of how FAPE is to be provided may need to be different in this time of unprecedented national emergency.” As such, OCR recognizes that it may be “unfeasible or unsafe” for some institutions to provide services such as hands-on physical therapy, occupational therapy or tactile sign language.
OCR also acknowledges that it is not only services themselves that may be delayed, but also decisions about how to provide services. It appears that this is the reason that USDOE’s previous Question and Answer document did not contemplate making changes to IEPs due to the extended change in location of the instruction of students to home. Rather, both the original guidance and this Supplemental Fact Sheet contemplate that IEP teams will, once schools resume normal operations, make individualized determinations regarding whether and to what extent any compensatory services may be needed.
- Do What You Can Do
OCR also acknowledges that there is a great deal that schools and parents working collaboratively can accomplish, even in these challenging times. They reference use of “distance instruction, teletherapy and tele-intervention, meetings held on digital platforms, online options for data tracking, and documentation” as well as “low tech strategies” such as instructional packets, projects and written assignments. The message is to focus on the possible.
OCR provides one reminder: while distance instruction must be accessible to all students, including Students with Disabilities, the method need not be the same for all students. So if the chosen mode of instruction is not accessible to some students, the school district must find an equally effective alternative. OCR provides the example of a teacher with a blind student in his/her class. A print version of an assignment may be distributed classwide, so long as the teacher uses some other method to make the assignment accessible to the blind student – whether by reading it to the student in a telephone call, providing an audio recording, or something else.
- Timelines and Other IDEA Requirements
OCR acknowledges that “there may be additional questions about meeting the requirements of federal civil rights law” and noted, importantly, that “where we can offer flexibility, we will.” In an attachment, OCR addresses several IDEA timelines more specifically.
- State Complaints: USDOE may deem staff unavailability due to the COVID-19 outbreak an exceptional circumstance warranting extension of the 60-day complaint resolution timeline.
- Due Process Hearings: According to the guidance, the 30-day resolution period may be extended by agreement of the parties. A hearing officer may grant extensions to the timeline for rendering decision in the hearing on request of either party.
- Once a student is found eligible for services under the IDEA, there is nothing in federal law or regulation that provides for an extension of the timeline to initiate services.
- Neither is there anything that allows for waiver of the requirement to conduct annual reviews. However, OCR notes that parents can agree to conduct meetings other than in person, for example, via telephone or videoconference. Parents and school districts are encouraged to work collaboratively toward this end.
- OCR also notes the availability of the option to amend IEPs for any given school year, once developed, via written agreement.
- Initial Eligibility Determination: IDEA provides for a 60-day timeline to complete a student’s initial evaluation. New York State Regulations permit the parent to agree (in writing) to an extension of this timeline.
- Re-evaluations: OCR notes that parents and the school district may agree that re-evaluation is not necessary. Further, OCR notes that if appropriate, a re-evaluation may be conducted through a review of existing evaluative data without new evaluations, if parents are notified of their right to request re-evaluation.
Final Thoughts (for today)
We’ll keep updating you as new guidance becomes available. We know this situation changes from day to day – sometimes from one minute to the next. We’re in this with you, and we’re here for you in whatever way we can help. Don’t hesitate to call or email any of us.
 The information contained in this blog post is applicable as of today, March 23, 2020. The discussion is general and may not address all specific situations. Don’t hesitate to contact us with any questions you may have.
 The attachment also includes guidance regarding timelines for Early Intervention.