The U.S. Department of Education’s Office of Special Education Programs (OSEP) published a new COVID-19 Q&A on September 28, 2020 (OSEP QA 20-01). While OSEP explicitly cautions that the Q&A “is intended only to provide clarity to the public regarding existing requirements,” it nonetheless provides insights on how long-standing rules and laws will be applied to the novel COVID-19 virus.
In support of school districts that are guiding their decision-making based on the health and safety of students and staff, OSEP repeatedly describes health and safety as “most important” and “paramount.” If a hearing officer or court is making a decision based on the equities (i.e. fairness) the emphasis of OSEP on safety will weigh in favor of schools making reasonable adjustments to how IDEA is implemented. However, OSEP also repeatedly states that school districts “remain responsible for ensuring that a free appropriate public education (FAPE) is provided to all children with disabilities.” This requires an individualized response to COVID-19 that focuses on “each child’s unique needs” and ensures “challenging objectives.”
To strike the balance of protecting health and safety while also providing FAPE, OSEP points school districts to the normal IDEA processes. The Q&A notes that no changes to the law or regulations have been made at the federal level. Interestingly, when discussing the timeline for initial evaluations OSEP advises that states “have the flexibility to establish additional exceptions” to the 60 day initial evaluation timeline. As of this writing, the Ohio Department of Education has not taken actions to allow for COVID-19 specific exceptions from the timeline.
Otherwise, OSEP’s Q&A largely points to approaches that have been addressed in prior “Special Education Spotlight” articles, Ennis Britton blog posts, and in our Coffee Chat webinar series. These approaches include conducting records review evaluations when in-person evaluations are not possible, using virtual team meeting platforms, and delivering services flexibly (e.g. teletherapy, consultation with parents.). OSEP warns against conducting remote evaluations if doing so would violate the instructions of the test publishers.
The discussion of extended school year (ESY) services is perhaps the topic most likely to generate interest in the short-term. After clearly distinguishing ESY from compensatory education or recovery services, OSEP acknowledges the authority of the states to establish standards for ESY. Note that in Ohio the standard is based on excessive regression and recoupment. OSEP proceeds to observe that, understandably, ESY services may not have been provided over the past summer due to COVID-19 restrictions. In such cases, OSEP encourages school districts to “consider” providing ESY during times such as the regular school year or scheduled breaks (e.g. winter break).
The Ennis Britton Special Education Team will continue to monitor and share with clients the latest developments as we navigate this unusual school year. Please contact a member of our team with questions or concerns.
The Coronavirus Aid, Relief, and Economic Security (CARES) Act was passed by Congress on March 27, 2020. Part of the act directs U.S. Education Secretary Betsy DeVos to submit a report to Congress. The report, that must be submitted by the end of April, is to make recommendations for any additional waivers that might be needed under IDEA, in direct response to the COVID-19 pandemic. There is reason to believe that a concerted effort on the part of school districts could result in much-needed flexibility during this unprecedented time.
The National Association of State Directors of Special Education (NASDSE) and the Council of Administrators of Special Education (CASE) jointly wrote a letter in anticipation of the report the DeVos will submit. The letter asks for flexibilities for specific IDEA provisions that have been affected by COVID-19. Those provisions include timelines, procedural activities, and fiscal management. Other groups, including parent groups pushing back hard against reasonable adjustments in light of the global pandemic, are also lobbying for what flexibility should entail.
Concerns that we are hearing from clients often center on flexibility related to evaluation timelines (especially initial evaluations), recognition that what constitutes a free, appropriate, public education during the health emergency need not match what would be provided under regular operations, and realistic expectations for compensatory education upon resumption of regular school operations. If you would like to contribute to the conversation on what the flexibilities might look like, now is the time. Get in contact with professional organizations to lobby for what you feel strongly about. Your opinion matters.
The long-running Doe v. Ohio Department of Education litigation was back in the news earlier this month. The settlement became final and effective nearly three decades after the lawsuit was initially filed. Ennis Britton previously notified clients of the proposed settlement in December when the Ohio Department of Education’s Chief Legal Counsel sent a notice to districts that a proposed settlement has been reached. To be clear, no individual school district was a defendant in this case. Defendants included the State of Ohio, the Governor, the State Superintendent of Public Instruction, and the Ohio Department of Education. The plaintiffs – parents of students with disabilities and the students themselves – alleged that the defendants failed to ensure that students with disabilities were adequately educated in compliance with the law.
A hearing was held on February 11, 2020, to determine whether final approval would be given to the proposed settlement that circulated in December 2019. The settlement has been approved and took effect earlier this month. The settlement covers a five year period and will focus on eleven priority districts (Canton City, Cleveland Metropolitan, Columbus City, Cincinnati Public, Toledo Public, Dayton Public, Akron Public, Youngstown City, Lima City, Zanesville City, and East Cleveland City School Districts). During the settlement period, ODE will develop a plan to improve inclusion and outcomes and will implement and monitor the implementation of the plan in the priority districts.
Ennis Britton’s Special Education Team anticipates it is very likely that ideas and expectations from the plan for the eleven priority districts will have broader application in the long run. Thus, even districts that are not initially prioritized by the settlement are likely to feel the effects of the settlement. It will be important for all school districts to monitor the implementation of the settlement and to advocate for both reasonable expectations and appropriate additional funding to support whatever aspects of the settlement plan are given broader application to all of Ohio’s school districts.
Ennis Britton’s Special Education Team will continue to update our clients on the implementation of the Doe settlement.
It should come to no one’s surprise that the state and federal laws do not allow for exceptions to the required timelines for ETRs, IEPs, etc. As discussed in other posts, in December 2009, in response to the H1N1 pandemic, the U.S. Department of Education issued a memo titled “Guidance on Flexibility and Waivers for SEAs, LEAs, Postsecondary Institutions, and other Grantee and Program Participants in Responding to Pandemic Influenza (H1N1 Virus)” which plainly stated that the U.S. Department of Education would not waive the requirements for school districts to evaluate and assess during school closures. While the U.S. Department of Education issued a “Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak,” the Department did not issue any comments regarding IEP and 504 timelines at this time.
The Ohio Department of Education has issued its own Considerations for Students with Disabilities During Ohio’s Ordered School-Building Closure originally on March 17th, and updated on March 27th.
Proper planning on your school district’s and case manager’s part will be essential in determining how your school district needs to act as schools are currently (as of March 30, 2020) closed until May 1st during which you would may be required to have an ETR or IEP meeting.
My school district is in the middle of conducting an ETR on a student. Do we continue with this evaluation?
Based on the Guidance and Considerations, you continue with the evaluation of the student. Your district may want to consider how much of the evaluation and assessments can be held remotely. If you can hold the ETR evaluations remotely, then you can hold the ETR meeting during the time of the closure via telephonic or video conference means. If pieces of the evaluation cannot be conducted because school is closed, the evaluation would need to be delayed and a prior written notice for the same should be sent. If you have not yet conducted the evaluation and assessments, another option to consider is waiving the reevaluation and delaying it until return to the in-person education with parental consent or to conduct a records review. The guidance from the Ohio Department of Education indicates that all services should still be provided if parents consent to waive reevaluation.
Are we required to hold in-person meetings for ETRs and IEPs during a school closure?
If school closes, IEP teams are not required to meet in person. However, according to the Guidance, schools must continue working with parents and students with disabilities, to develop required documents – ETRs, IEPs, 504s, etc. If a plan or evaluation for a student expires during the time of school closure due to COVID-19, IEP/504 teams should offer to meet via telephone conference or videoconference with the parents. School personnel should attempt to determine the specific services that can be provided during the ordered school-building closure period. If the parent does not agree with meeting via telephone or video conference, then the meeting should be delayed until school reopens according to the Guidance.
What about evaluations and plans developed under Section 504?
The same principles apply as discussed above for ETRs and IEPs to those activities conducted by schools for a student with a disability under Section 504 according to the Guidance. You will want to review your school district’s 504 polices to determine 504 plan review and reevaluation timelines, as there is no requirement in federal law for how often must occur.
How do we help our staff in planning for this potential?
School district personnel should look at their evaluation and IEP timelines to determine which items may expire during the next few weeks/months of the 2019/2020 school year. It would be prudent to plan how items may be advanced or to begin discussions now with parents on what the plan will be in the event of a school closure.