On March 18, 2020, the Illinois State Board of Education (ISBE) issued guidance specific to the unique special education issues implicated by COVID-19 and the mandated school closures. The most recent guidance does not significantly alter previously-shared guidance. To date, the Office for Special Education Programs at the U.S. Department of Education (“OSEP”) has provided no flexibility regarding annual reviews, due process hearings, mediations, transition from early intervention to early childhood and/or compliance with timelines triggered by calendar or business days. The ISBE guidance acknowledges such and generally encourages the use of remote options in order to maintain compliance. Below are the most important points highlighted in ISBE’s guidance document.
- Timelines: ISBE’s guidance confirms IDEA timelines based on calendar days (i.e. annual reviews, triennial reevaluations) still apply, even while schools are closed due to COVID-19. Accordingly, ISBE recommends school districts continue to hold annual reviews and triennial reevaluation meetings during the school closures “via alternate means.” ISBE reminds school districts to obtain parent consent prior to convening a meeting via alternate means. Similarly, ISBE confirms there is “no flexibility for the requirement to comply with federal and state special education timelines connected to due process, complaint investigations, and mediation timelines.” If your school district is in the midst of due process or a state-complaint investigation, please contact your attorney, the Hearing Officer assigned to the case, or the investigator assigned to the case for specific direction as to how to proceed.
- Early Intervention to Early Childhood Transition: Much like the IDEA Part B timelines referenced above, ISBE confirms there is no flexibility for students transitioning out of Early Intervention. Such students are still required to have either an IEP or an Individualized Family Service Plan in place by their third birthday.
- FAPE: ISBE confirms “that a LEA that is not providing any educational opportunities to its general education students would not be required to provide services to students with disabilities during that same period of time.” We have found that many school districts are providing continuous learning opportunities to students during the Act of God days. School districts should be aware of the unique special education implications of the continuous learning opportunities and should ensure special education students have access to any continuous learning opportunities.
- Compensatory Education: ISBE’s guidance requires school districts to make individualized determinations as to the need for compensatory education in the event students do not receive special education services for an extended period of time. We encourage school districts who are providing continuous learning opportunities to special education students to keep careful records of the services being provided. These records will be useful when making individualized determinations as to the need for compensatory education.
- Teleservices: ISBE encourages school districts to “consider using teletherapy or video therapy” and “alternate means” for providing services and hosting meetings during the Act of God days. ISBE is referring questions regarding Medicaid reimbursement for tele-therapy to the Illinois Department of Healthcare and Family Services.
- Residential Facilities: ISBE confirms residential facilities in the state of Illinois may remain open during the Act of God days to provide room and board services; the educational components of these facilities will be closed during the Act of God days. Out-of-state residential facilities must follow their own state’s laws and guidance as to whether to remain open. We recommend connecting with your out-of-state residential facility partners regarding possible closures and ensure a plan is in place for ensuring the student’s safe transport back to Illinois, if required.
- Reimbursement for Private Placements: At this point, it remains unclear as to whether school districts will receive reimbursement for tuition payments to private special education facilities during the Act of God days. ISBE is “seeking flexibility to allow private special education schools to bill and receive the tuition per diem rate that is set by the Illinois Purchased Care Review Board during the course of the statewide school closure.”
In addition to ISBE’s guidance, the Office for Civil Rights at the United States Department of Education (OCR) issued guidance on March 16, 2020, as to the school-based civil rights implications of COVID-19. OCR encourages schools to be mindful of bullying and harassment based on actual or perceived disability, race, color, or national origin as a result of COVID-19. Additionally, OCR stated school officials must not discriminate on the basis of disability, race, color, or national origin during the COVID-19 outbreak. School officials must ensure equal access to educational services during the COVID-19 outbreak and must not institute any policies or procedures that have a disparate impact on students of a particular disability status, race, color, or national origin. To illustrate its guidance, OCR stated, “a practice of only inquiring about the recent travel of students or family members of a particular race or national origin, rather than screening students based on recent travel, could raise civil rights concerns.”
For additional guidance on issues related to COVID-19, please refer to HLERK’s guidance document or contact any of the attorneys in our Students/Special Education Practice Group.