To our clients:

This email is the third HLERK blast addressing COVID-19. Each blast answers the most frequently asked questions from you, as well as new questions that have arisen over the weekend. Later today, we will follow this email with a link to our COVID-19 Guidance for Illinois Schools, our guidance combining the frequently asked questions from all three blasts in one resource document for your reference.

This third blast addresses questions involving the areas of students/special education. Please note that our answers are based on the latest orders and guidance from the Governor, ISBE, and the CDC. If you have questions or are unclear about anything, please call us. You can reach us 24/7.

Are school districts required to provide a free appropriate public education (FAPE) to eligible students under IDEA and Section 504 during the mandated school closures?

If during the “school closure days” (March 17-March 30) a school district does not provide educational services to its general education students, the district is not required to provide services to its special education students. ISBE’s updated March 14, 2020, guidance clarifies the school closure days will not count as student instructional days. However, if a school district provides e-learning services or instructional opportunities for general education students during the school closure days, then the district is required to attempt to provide FAPE to special education students. See ISBE Guidance and Department of Education Q & A on providing special education during the Coronavirus outbreak.

Governor Pritzker assured school administrators during his press conference on March 13, 2020, the state will issue no penalties as a result of the mandated statewide school closure. In addition, Superintendent Dr. Carmen Ayala issued a statement on March 13, 2020 indicating “ISBE will issue no penalties and will work to ensure no negative consequences to districts” regarding any possible impacts of the school closure, which we assume includes the provision of FAPE to eligible students. However, ISBE has not received any formal waiver from the federal Department of Education (“DOE”) on IDEA/Section 504 requirements (see FAQ No. 3 below).

How do schools who have not adopted e-learning plans continue to provide education during the mandated school closures? How do school districts provide “continuous learning opportunities” during this school closure? Has ISBE “waived” the statutory application requirements to establish e-learning programs?

For districts that have not adopted e-learning plans, ISBE has authorized all districts to provide “continuous learning opportunities in the way that you are able, including through technology and free online resources” that work best for the district’s school community. See ISBE’s March 14 updated guidance. Because the school closure days will not serve as student instructional days, districts have absolute discretion in defining “continuous learning opportunities” for students during this closure period. See ISBE’s online library of instructional resources.

In the meantime, ISBE advises districts should prepare and submit an e-learning program proposal to its respective ROE or ISC for approval as soon as possible. However, e-learning plans are not mandatory. Governor Pritzker’s March 13, 2020, Executive Order suspended the remaining procedural requirements of e-learning approval during the period of the Disaster Declaration, including:

  • Removing the limit on the number of e-learning days a district may use during the state disaster proclamation;
  • Allowing district superintendents to adopt the plan without board approval;
  • Removing the requirement that school boards hold a public hearing on the plan;
  • Removing the September 1 plan approval deadline;
  • Removing the 30-day parental notification requirement; and
  • Allowing ROEs/ISCs not to deny plan approval based solely on the 300-minute instructional requirement, if the ROE/ISC determines that the plan provides substantial student learning opportunities.

ISBE has changed its March 17 e-learning webinar to a webinar for administrators to discuss ISBE’s guidance and answer questions. Districts can register for the webinar HERE.

How do school districts deliver special education services during e-learning days?

Do your best. Ultimately, the answer depends on each student’s programming and services. School districts that adopt e-learning plans or those providing some level of services through continuous learning opportunities (even in cases where the e-learning plan is not approved by the Board or ROE) should work to provide instruction, related services, and accommodations/modifications that can be delivered to students based on their IEPs and 504 plans. For example, if a student receives an accommodation for enlarged print, the district should provide assignments with enlarged print on e-learning days. If a speech language pathologist can deliver speech services to a student via Skype where the student will receive benefit from the service, then they can provide speech services to the student via Skype.

For instruction and related services districts cannot deliver through an e-learning platform or other “continuous learning opportunities” (e.g. students who require functional academic instruction in a structured, classroom setting, or direct occupational and physical therapy services), districts may need to consider compensatory education services on an individualized basis following the school closure. As stated above, ISBE indicated it will not issue any penalties to school districts during the school closure days. We assume this statement applies to districts’ provision of FAPE and special education and related services; however, we await further guidance from ISBE on the provision of special education in the next several days. At this time, we recommend districts do their best to deliver any special education services, related services, and accommodations they can through the e-learning platform or “continuous learning opportunities” based on students’ IEPs and 504 plans.

Are school districts still required to meet IDEA timelines during school closures?

During the school closure days, IDEA timelines defined by “school days” are likely suspended. Per ISBE’s March 14 updated guidance, the school closure days will not count as instructional days; as a result, these days likely do not qualify as “school days” in calculating relevant IDEA timelines. Examples of IDEA timelines that reference school days include the 60-school-day timeline for evaluations and the 14-school-day for responding to an evaluation request.

However, to the extent possible, teams can consider telephone and video conference applications to hold scheduled IEP/504 meetings with families to meet mandated deadlines for annual review meetings and triennials. School districts can also consider asking parents to waive the attendance of certain IEP team members and ask parents to sign excusals. We expect both the DOE and ISBE to apply leniency in their oversight of mandated annual review/triennial meetings during a school closure. Consult with your legal counsel on rescheduling annual reviews, triennials, and eligibility meetings during a school closure if the closure results in an untimely meeting.

For students currently in the IDEA/504 evaluation process, either for an initial case study evaluation or a triennial reevaluation, the 60-school-day timeline is likely suspended to complete these evaluations and hold student eligibility meetings during this school closure. In most cases, teams cannot evaluate students without in-person testing sessions or classroom observations. When schools reopen, student services teams should prioritize evaluations for students who are impacted by the timing of the Governor’s March 13 order and school closure. In cases where the student’s testing is complete prior to the mandated school closure, staff can complete their report writing during the school closure days.

For all other statutory/regulatory requests and mandated calendar day responses (e.g. responding to a parent request for an IEP meeting, parent requests for an independent evaluation at public expense, remitting a parent’s revocation of consent for special education services to writing ), these calendar day timelines remain in effect during the school closure period. Again, do your best. ISBE indicated it will not penalize districts during this school closure. We expect additional guidance from ISBE in the next week regarding the provision of special education services to students and IDEA/ISBE timelines. See HLERK Timelines Cheat Sheet.

Are school districts required to provide home hospital services during the mandated school closures?

No. School districts are not required to provide home hospital services during the mandated school closure. Districts should communicate with parents of students receiving home/hospital instruction regarding their e-learning plans or “continuous learning opportunities,” if applicable, for these students to participate during the school closure period.

Are school districts required to remove residentially placed students from residential facilities during the mandated school closures? If districts decide to remove students from these placements, are districts responsible for transportation from the facility to the student’s home?

No. Currently, there is no requirement for school districts to remove residentially placed students and transport these students to their homes if the residential facilities remain operational. However, if school districts do choose to bring their residentially placed students home, the school district is responsible for the students’ transportation costs. These transportation costs are reimbursable through ISBE.

Are school districts required to respond to student records requests under the Illinois School Student Records Act during school closures?

Yes. The Illinois School Student Records Act provides school districts must respond to requests for student records within ten business days of the request (with the opportunity to exercise a five business day extension if certain statutory requirements are met). Identical to the response requirements under FOIA, the business day timeline under ISSRA likely remains in effect. We recommend school administrators monitor both their email inboxes and regular mail during the closure period for student records requests and respond accordingly. Of course, this may prove difficult without staff at the district to assist in gathering, copying, and producing records. We recommend reaching out to requestors during the school closure period to request their flexibility in response time if you receive a voluminous records request.

Are school districts required to provide meals on e-learning days? What about when schools are closed?

School districts are not required to provide meals, including free and reduced price lunches, on e-learning days or on days when schools are closed. However, the United States Department of Agriculture (USDA), as well as ISBE, encourages school districts participating in the National School Lunch Program and/or School Breakfast Program and institutions participating in the Child and Adult Care Food Program to continue to provide meals to their students, especially students who receive the majority of their meals through schools, in areas experiencing school disruptions in response to COVID-19. Therefore, school districts may choose to provide packaged meals that meet the meal pattern requirement for delivery or pick-up on days when school is not in session. See ISBE’s March 14 updated guidance. These meals may be reimbursable, as ISBE was recently granted a waiver from USDA. To apply, please complete this form and submit to ISBE.

Following a school closure, how do school districts track student attendance in the event parents proactively decide to keep their children home during the COVID-19 outbreak? Do school districts have an obligation to provide these students services while they are at home when schools are in session?

Pursuant to Governor Pritzker’s March 13, 2020, Executive Order, the definition of “chronic absence” is suspended, and student absences due to school closures and absences connected to the transmission of COVID-19 during the mandated statewide school closure will not contribute to the calculation of chronic absence.

Moreover, consistent with ISBE’s guidance, student absences for health or safety reasons should be considered excused absences. However, school districts in Illinois have some discretion to set parameters for excused absences. Generally speaking, a school district’s obligation to these students would be consistent with the District’s obligation to any other student who is ill while school is in session – districts can provide the student with instructional materials and homework during the student’s absence from school. Homebound tutoring in this situation is not required.

However, if a student provides the district with a Home/Hospital Certification and request for home/hospital services in accordance with 105 ILCS 5/14-13.01(a), or the district is aware of a student with a compromised immune system, the district should follow its home/hospital instruction procedures and consider IEP/Section 504 meetings for impacted, eligible students to discuss programming in the home/hospital setting. See DOE’s Q & A document.

Should school districts cancel all school field trips?

Pursuant to ISBE’s guidance, all in-person, school-sponsored activities scheduled during the statewide school closure are suspended until school resumes. Governor Pritzker has prohibited all large gatherings in Illinois of more than 1,000 people for the next 30 days and recommended postponing all gatherings of 250 people or more amid the outbreak. As of March 15, the CDC is recommending communities restrict gatherings of 50 or more for the next eight weeks. Therefore, it is advisable that all field trips are postponed at this time. Additionally, ISBE is strongly urging all school districts to generally “re-evaluate any planned or anticipated travel,” which would include travel outside the current period of mandated closure. ISBE specifically “advises that trips to any countries with active advisories be postponed to a future date or canceled and replaced with another trip.”

Should school districts proactively cancel graduation ceremonies?

There is no need to cancel graduation ceremonies at this time. However, Governor Pritzker has limited large gatherings in the state for the immediate future. Should the COVID-19 outbreak continue, school districts may be required to reconsider their traditional graduation ceremonies.

What should school districts do about spring standardized testing, e.g. MAP testing, ACT, and SAT?

The Department of Education communicated it will make waivers available for assessments and accountability due to school closures. ISBE is working with stakeholders to determine next steps for Illinois, and we anticipate further guidance in the upcoming days and weeks.

Are there bullying implications to COVID-19?

Yes, school districts should place a particular awareness on monitoring unlawful bullying and harassment. Per ISBE, “it is of critical importance to stress to staff, students, parents, and community members that COVID-19 infections are not limited to certain geographical locations, nationalities, races, or cultures. Schools must take a firm stance to discourage and prohibit discriminatory practices and viewpoints in Illinois Schools.”

Are there useful resources regarding students and special education matters?

CDC Guidance for Schools and Childcare

IDPH School Guidance

ISBE Coronavirus Guidance and Resources for Illinois Schools (will be updated frequently)

March 14, 2020 ISBE Guidance to Schools of Mandatory Statewide Closures

March 13, 2020 Message from State Superintendent Dr. Carmen Ayala

Department of Education Q&A on Providing Services to Children with Disabilities

USDA Memo on Child Nutrition Program Meal Service during Novel Coronavirus Outbreaks

HLERK Timelines Cheat Sheet