On March 21, 2020, the Office for Special Education Programs at U.S. Department of Education (“OSEP”) issued guidance specifically addressing issues unique to special education implicated by COVID-19 and the mandated school closures. In sum, OSEP strongly encourages the use of remote technology options for students with disabilities during this mandated school closure. Although this guidance does not significantly alter ISBE’s and HLERK’s guidance documents, OSEP does specifically address FAPE and IDEA timelines, detailed below.
Below are the most important points highlighted in OSEP’s March 21 resource document and updates to our HLERK COVID-19 FAQ.
Are school districts required to provide a free appropriate public education (“FAPE”) to eligible students under IDEA and Section 504 during the mandated school closure?
Yes. School districts should continue to make “local decisions that take into consideration the health, safety, and well-being of all their students and staff.” OSEP is clear that a district’s compliance with the Individuals with Disabilities Education Act (“IDEA”), Section 504 of the Rehabilitation Act (“Section 504”), and Title II of the Americans with Disabilities Act should not prevent any school district from providing educational programs through distance instruction. Accordingly, schools should not opt to close or decline to provide “distance instruction” (virtual or online education) to all students to avoid liability for failing to provide FAPE to students with disabilities.
We encourage school districts to continue to explore continuous learning opportunities for students eligible for special education and related services. OSEP acknowledges that during this school closure period, schools may not be able to provide all services in the same manner they are typically provided. Per the guidance, school team’s determination of FAPE may “need to be different” in this unprecedented national emergency. Do your best with the resources you have.
How do school districts deliver special education services during the mandated school closure? Does OSEP mandate a specific method for “distance” learning?
OSEP’s guidance does not significantly alter the existing guidance on instruction and related services. OSEP states that while federal law requires “distance” instruction to be accessible to students with disabilities, IDEA does not mandate specific methodologies. OSEP encourages districts to consider teletherapy and tele-intervention to provide services during the mandated closure period. Schools that adopt e-learning plans should continue to work to provide instruction, related services, and accommodations/modifications that can be delivered to students based on their IEPs and 504 plans – and understand the flexibility in the method we provide these services.
How do we program for students who may not benefit from technology, e-learning, or similar instructional platforms during the school closure?
For students where technology imposes a barrier to their access to instructional materials, educators can meet their legal obligations by providing eligible students “equally effective alternate access” to the curriculum or services provided to other students. As an example, OSEP discusses audio recording a document for a blind student at the time the document is electronically distributed to a class. OSEP also reminds educators to consider “low-tech” options, including instructional packets, projects, and written assignments.
Following the school closure, if a district is unable to provide educational services through an e-learning or other instructional platform, then on an individual basis, the district may need to consider compensatory education services for instruction and related services. During the closure period, we recommend districts keep careful records of the services teams are both offering and providing to students with disabilities. This documentation will prove useful when teams discuss compensatory education once schools re-open.
Are school districts still required to meet IDEA timelines during the mandated school closure?
Yes. While OSEP encourages public agencies to work with parents to reach mutually agreeable extensions of time for mandated timelines, as appropriate, OSEP confirms there is no current flexibility for school districts’ requirement to comply with federal and state special education timelines.
- IEPs/Eligibility Meetings: The 30-day window to develop an initial IEP based on an eligibility determination remains mandated.
- Annual Review/Triennial Reevaluation IEP Meetings: OSEP confirms school districts need to continue to review IEPs annually and complete triennial reevaluations. OSEP recommends districts hold annual review meetings via alternate means, such as videoconferencing and telephone conferencing. With respect to reevaluations, OSEP reminds districts that school teams can complete a reevaluation through “a review of existing data” (aka, a file review) without a meeting and without parental consent.
- Evaluations/Eligibility Determinations: Similarly, the 60-school-day timeline to complete evaluations and hold student eligibility meetings remains mandated during this school closure. In Illinois, the days included in the initial school closure period (March 17-March 30) are “Act of God” days and not instructional days. As a result, this 60-school-day timeline is currently suspended. However, if ISBE moves to defining future days as “remote instructional days” during a continued school closure, the 60-school-day timeline will be reinstated.
OSEP also discusses timelines for state complaints and due process hearings. If you are working through either a state complaint or due process, contact your legal counsel to discuss the statutory timelines during the school closure period. 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.