Coronavirus Federal and State Education Guidance

Coronavirus Federal and State Education Guidance

Coronavirus (COVID-19) Federal and State Education Guidance

United States Department of Education says that infants and toddlers with disabilities must be given a free appropriate public education during the COVID-19 pandemic

On October 29, 2021, two new federal guidance were issued. These guidance documents are from the Office of Special Education and Rehabilitative Services (OSERS). OSERS is part of the United States Department of Education. Both guidance documents say that infants and toddlers with disabilities must receive a free appropriate public education even during the COVID-19 pandemic.

“Child Find” Guidance

The first guidance document is called “Return to School Roadmap: Child Find, Referral, and Eligibility under Part C of the Individuals with Disabilities Education Act”.

This guidance document says that state lead agencies and early intervention service providers (together with each other, “providers”) are still responsible for “Child Find”. “Child Find” means that these providers must “identify, locate and evaluate” all infants and toddlers with disabilities (ages 0-3) who may require early intervention services.

The new guidance says:

  • Providers must still follow all timelines and procedures with evaluating a child who is suspected to have a disability.
  • If a child was referred for early intervention services but the family was not contacted, providers should contact these families immediately.
  • If a family did not consent to an initial evaluation for early intervention services, then providers should follow-up with families to see if the families are interested in consenting to an evaluation.
  • If the family did consent to an initial evaluation but that evaluation was not conducted, then those evaluations must be conducted as soon as possible.
  • If the family declined services after the child was found eligible for early intervention services, then providers should follow-up with families to see if they are interested in consenting to services.
  • If the child is now over the age of three, then families should be provided with information about the IEP process.
  • Screenings and evaluations can be provided in person and in some cases virtually.

“Early Intervention Services”

The second guidance document is called “Return to School Roadmap: Provision of Early Intervention Services”.

This guidance document focuses on the development and implementation of an Individualized Family Services Plan, or IFSP.

This guidance document says that:

  • IFSP teams should consider the full impacts of the COVID-19 pandemic for each child and their family.
  • The IFSP team still includes the parent/guardian of the child.
  • IFSP meetings may need to be held more often if there are COVID-19 impacts on the child and family.
  • Qualified people must conduct initial assessments. They must look at the specific impact of COVID-19 on the child’s needs and the family’s resources and capacity.
  • If a child did not receive all or some of their services because of the COVID-19 pandemic, they may be entitled to compensatory education. IFSP teams must make individual decisions about compensatory education.
  • Some children may have received an “Interim IFSP”. That means, that they were offered services. But, they were not evaluated and an IFSP was not developed. For any child with an Interim IFSP, the IFSP team must complete the child’s evaluations. The IFSP team must hold an IFSP meeting to review the evaluation results and revise the IFSP, if needed.
  • The child’s IFSP team must decide whether virtual services are appropriate for the child.
  • IFSP teams must make a transition plan if the child is transitioning from an IFSP to an IEP. If a child did not receive transition services but should have, the IFSP team can determine whether the child should receive compensatory education.
 

United States Department of Education says that federal special education law should be followed with return to in-person school

On September 30, 2021, the United States Department of Education issued a guidance document called “Return to School Roadmap”. This guidance document says federal special education laws should be fully implemented during school reopening efforts.

This guidance document says that students with disabilities still have a right to a free, appropriate public education (FAPE). Also, States and school districts must make additional educational programs and services, including instructional programs, available to all students.

This guidance document talks about these topics:

  • IEPs in place at the start of the school year
  • IEP teams
  • Assistive technology
  • Social, emotional, behavioral, and mental health needs of students with disabilities
  • School-related health needs of children with disabilities with underlying medical conditions,
  • IEP Annual Goals
  • Compensatory education
  • Extended School Year
  • Transition
  • Educational Placements
  • Dispute resolution

Here are a few highlights from this guidance document:

  • Schools must have an IEP in place for each student with a disability at the start of the school year;
  • In some instances, the IEP team may hold an IEP meeting before the beginning of the school year;
  • IEP teams can continue to meet virtually if the family agrees to a virtual meeting or COVID-19 practices require it;
  • If a student with a disability received a laptop from the school for distance learning, then the IEP teams should see if the laptop is still needed for the student to receive a FAPE;
  • IEP teams should consider whether the student with a disability needs more assistive technology devices;
  • IEP teams can offer training to students/families on how to use assistive technology devices;
  • If a student with a disability has a new or different social, emotional, behavioral or mental health need, IEP teams must consider the need and whether the student needs services and supports to address this need;
  • Schools should not use discipline to address a student’s behaviors when they return to school;
  • Students with disabilities who need school-related health services should receive these services as part of their offer of FAPE;
  • Some students with disabilities may need their IEP to include COVID-19 reducing strategies, like personal protective equipment or sanitization, and health plans can be included in the student’s IEP;
  • Schools should consider compensatory education1 for each student;
  • A student with a disability may be eligible for extended school year services and compensatory services;
  • IEP teams must consider offering compensatory education and revising IEPs for students with disabilities who had transition services disrupted by COVID-19;
  • Parents can file a due process complaint or state complaint if they disagree with the school’s offer of compensatory education;
  • If schools provide virtual instruction to all students, then schools must make sure that students with disabilities receive their services and supports from their IEP in virtual instruction.

Read the guidance document. You may want to bring the guidance document to your child’s next IEP meeting. It may be helpful to point to parts of the guidance document that support your request for your child’s special education.

 

United States Department of Education states that school districts must identify, locate, and evaluate children with disabilities during the COVID-19 pandemic

On August 24, 2021, new federal guidance was issued. This guidance is from the Office of Special Education and Rehabilitative Services (OSERS). OSERS is a part of the United States Department of Education.

This guidance affirms that school districts still have “Child Find” obligations during the COVID-19 pandemic. “Child Find” means that school districts have an obligation to “identify, locate and evaluate” all children with disabilities, ages 3 through 22, who may be eligible for special education. School districts have this obligation under federal and state special education law.

This new guidance says:

  • School districts must identify, locate, and evaluate children who are suspected to have a disability. This includes students enrolled in public schools, public charter schools (including virtual public charter schools), private schools, or homeschool.
  • School districts must conduct an initial evaluation and hold an IEP meeting within 60 days of receiving the parent/guardian’s consent to assess.
  • General education interventions, like Multi-Tiered Systems of Supports, cannot be used to delay or deny an initial special education evaluation for a student suspected to have a disability.
  • School districts should review their Child Find activities. Virtual instruction limits or prevents a teacher’s interaction and contact with a child. As a result, some students may not be suspected to have a disability. School districts should make sure they are identifying, locating, and evaluating students suspected to have disabilities. This may mean that a school district may need to conduct additional screenings. They may need to share information about special education supports to the public.
  • COVID-19 may have disrupted a student’s education. The student may have received limited instruction. Limited instruction and little academic progress does not automatically mean that a student should be referred to special education.
  • Students with long COVID or suspected of having post-COVID conditions may be eligible for an Individualized Education Program. Their COVID condition must adversely impact the student’s academic and/or functional needs.

You can find this guidance through this weblink: https://sites.ed.gov/idea/files/rts-qa-child-find-part-b-08-24-2021.pdf

 

Office for Civil Rights and Office for Special Education and Rehabilitative Services Issue Resource on Long COVID

On July 26, 2021, the Office for Civil Rights and Office for Special Education and Rehabilitative Services issued a resource. This resource is called “Long COVID under Section 504 and the IDEA: A Resource to Support Children, Students, Educators, Schools, Services Providers, and Families.”

Early studies show that children and students of all ages may experience long COVID. Long COVID means the child or student has contracted COVID and experiences post-COVID symptoms. This resource discusses how children and students with long COVID may be entitled to disability-related supports and services under federal laws.

This resource says:

  • Long COVID can be a disability under the Americans with Disabilities Act and Section 504 of the Rehabilitation Act (Section 504).
  • Students with long COVID may be eligible for special education and related services under the Individuals with Disabilities Education Act. They may have the right to protections and services under Section 504.
  • Students who already have an IEP or Section 504 Plan and who contracted COVID-19 may experience new and/or worsened symptoms related to their pre-existing disability due to COVID-19. These students may be eligible for new or different instruction, services, or supports.

This resource also reviews school districts’ obligations. School districts must identify, locate, and evaluate students who may be eligible for an IEP or Section 504 Plan due to long COVID.

This resource also reviews colleges and universities’ obligations. They must provide equal educational opportunities to students with disabilities. Students whose long COVID substantially limits a major life activity may have a disability. These students may be entitled to academic adjustments or modifications.

You can find this resource by clicking on this link: https://www2.ed.gov/about/offices/list/ocr/docs/ocr-factsheet-504-20210…

 

U.S. Department of Education Guidance

On March 12, 2020, the U.S. Department of Education stated that if a school district continues to provide educational opportunities to the general student population during school closure, it must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE. The student’s IEP or 504 team may be required to make an individualized determination as to whether compensatory services are needed under applicable standards and requirements.

On March 20, 2020, the U.S. Department of Education issued supplemental guidance warning schools against refusing to offer any distance learning to avoid its responsibilities under special education law. Students with disabilities are still entitled to a FAPE, but for health and safety reasons their IEPs might not be implemented the way they would be if school was in session. The school may choose to use services provided online including videos with accurate captioning or embedded sign language interpreting, accessible reading materials, and speech or language services through video conferencing. Where there are delays in services, the IEP or 504 team must make an individualized determination whether and to what extent compensatory services may be needed when schools resume normal operations.

On April 27, 2020, the U.S. Department of Education declined to recommend that Congress waive the FAPE requirements of Part B of the IDEA, which covers students with disabilities age 3-21. It concluded that “individualized education must take place for all students, including students with disabilities.” It further “determined there is no reason that a student's access to FAPE cannot continue online, through distance education or other alternative strategies.

On June 22, 2020, the U.S. Department of Education issued two guidance documents on the IDEA dispute resolution procedures. The first document covers complaints for students with IEPs aged 3-21 (due process complaints and state compliance complaints), while the second guidance document covers students aged 0-3. Both documents discuss when compliant timelines may be changed due to COVID-19.

On June 30, 2020, the U.S. Department of Education issued a Q&A document regarding IDEA procedural safeguards in the COVID-19 environment. This publication provides information about procedural safeguards including consenting to and signing an IEP, prior written notice (“PWN”), and access to educational records. The U.S. DoE provided more information in another Q&A document on September 28, 2020.

The U.S. Department of Education also issued a Q&A document containing information about IDEA Part C, the program for infants and toddlers with disabilities. That document can be accessed here.

 

California Department of Education Guidance

All of the CDE’s Coronavirus Response and School Reopening Guidance can be found on its website here.

On April 9, 2020, the California Department of Education released guidance answering questions regarding services for students with disabilities during school closures. SB 98, the law discussed at the top of the page, has superseded much of this information. Please refer to SB 98 before this document if you have questions about your child’s IEP rights during COVID-19 before reviewing this document.

On June 8, 2020, the CDE released school re-opening guidance titled Stronger Together: A Guidebook for the Safe Reopening of California's Public Schools. The guidance provides recommendations on many topics regarding school re-openings, including special education.

On September 30, 2020, the California Department of Education released additional guidance for California school districts and responsible educational agencies. This guidance provides information about providing in-person specialized supports and services to students with disabilities, as well as additional information regarding distance learning. CDE states that school districts or responsible educational agencies are permitted to provide in-person supports and services to small groups of students with disabilities.

As noted above, this guidance affirms SB 98’s requirement that a school district or responsible educational agency must include in a student’s IEP a description of how the IEP will be implemented under emergency conditions, when a student cannot receive in-person education for more than 10 school days. This plan should be a part of the student’s IEP and requires parental or student consent.

Importantly, CDE’s guidance states that school districts must continue to conduct special education assessments while providing distance learning, and special education assessments, including in-person assessments, can be conducted at this time.

 

California Department of Public Health Guidance

On September 22, 2021, the California Department of Public Health issued “COVID-19 Public Health Guidance for K-12 Schools in California” for the 2021-2022 school year. This guidance talks about safety measures to prevent the spread of COVID-19 in K-12 schools. Safety measures include masks, physical distancing, and quarantines.

This guidance says that schools must consider a student’s right to a free appropriate public education when following this guidance. This guidance also says schools must consider how to provide reasonable accommodations to a student with a disability when following this guidance.

  • 1. Compensatory education is education or services for a school district’s past failure to provide appropriate instruction and services from a student’s IEP.