New guidance from the US Department of Education, March 21, 2020

New guidance from the US Department of Education.  In this Supplemental Fact Sheet, the US Department of Ed reaffirms the rights of students to receive educational instruction and related services under federal special education law during the COVID-19 pandemic, although it may need to be provided remotely.  This Fact Sheet has examples of how schools and educators can deliver educational services.

https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/rr/policyguidance/Supple%20Fact%20Sheet%203.21.20%20FINAL.pdf?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=

 UNITED STATES DEPARTMENT OF EDUCATION
Office for Civil Rights Office for Special Education and Rehabilitative Services
March 21, 2020
Supplemental Fact Sheet
Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities
We recognize that educational institutions are straining to address the challenges of this national emergency. We also know that educators and parents are striving to provide a sense of normality while seeking ways to ensure that all students have access to meaningful educational opportunities even under these difficult circumstances. No one wants to have learning coming to a halt across America due to the COVID-19 outbreak, and the U.S. Department of Education (Department) does not want to stand in the way of good faith efforts to educate students on-line.
The Department stands ready to offer guidance, technical assistance, and information on any available flexibility, within the confines of the law, to ensure that all students, including students with disabilities, continue receiving excellent education during this difficult time. The Department’s Office for Civil Rights (OCR) and the Office for Special Education and Rehabilitative Services (OSERS) have previously issued non-regulatory guidance addressing these issues.*
At the outset, OCR and OSERS must address a serious misunderstanding that has recently circulated within the educational community. As school districts nationwide take necessary steps to protect the health and safety of their students, many are moving to virtual or online education (distance instruction). Some educators, however, have been reluctant to provide any distance instruction because they believe that federal disability law presents insurmountable barriers to remote education. This is simply not true. We remind schools they should not opt to close or decline to provide distance instruction, at the expense of students, to address matters pertaining to services for students with disabilities. Rather, school systems must make local decisions that take into consideration the health, safety, and well-being of all their students and staff.
To be clear: ensuring 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 from offering educational programs through distance instruction.
School districts must provide a free and appropriate public education (FAPE) consistent with the need to protect the health and safety of students with disabilities and those individuals providing education, specialized instruction, and related services to these students. In this unique and ever-changing environment, OCR and OSERS recognize that these exceptional circumstances may affect how all educational and related services and supports are provided, and the Department will offer flexibility where possible. However, school districts must remember that the provision of
* See Fact Sheet: Addressing the Risk of COVID-19 in Schools While Protecting the Civil Rights of Students (March 16, 2020); OCR Short Webinar on Online Education and Website Accessibility Webinar (Length: 00:07:08) (March 16, 2020); Questions and Answers on Providing Services to Children with Disabilities During the COVID-19 Outbreak (March 12, 2020); Fact Sheet: Impact of COVID-19 on Assessments and Accountability under the Elementary and Secondary Education Act (March 12, 2020); and Letter to Education Leaders on Preventing and Addressing potential discrimination associated with COVID-19
† References to IDEA in this document include both Part B and Part C.
         
 UNITED STATES DEPARTMENT OF EDUCATION
Office for Civil Rights Office of Special Education and Rehabilitative Services
FAPE may include, as appropriate, special education and related services provided through distance instruction provided virtually, online, or telephonically.
The Department understands that, during this national emergency, schools may not be able to provide all services in the same manner they are typically provided. While some schools might choose to safely, and in accordance with state law, provide certain IEP services to some students in-person, it may be unfeasible or unsafe for some institutions, during current emergency school closures, to provide hands-on physical therapy, occupational therapy, or tactile sign language educational services. Many disability-related modifications and services may be effectively provided online. These may include, for instance, extensions of time for assignments, videos with accurate captioning or embedded sign language interpreting, accessible reading materials, and many speech or language services through video conferencing.
It is important to emphasize that federal disability law allows for flexibility in determining how to meet the individual needs of students with disabilities. The determination of how FAPE is to be provided may need to be different in this time of unprecedented national emergency. As mentioned above, FAPE may be provided consistent with the need to protect the health and safety of students with disabilities and those individuals providing special education and related services to students. Where, due to the global pandemic and resulting closures of schools, there has been an inevitable delay in providing services – or even making decisions about how to provide services - IEP teams (as noted in the March 12, 2020 guidance) must make an individualized determination whether and to what extent compensatory services may be needed when schools resume normal operations.
Finally, although federal law requires distance instruction to be accessible to students with disabilities, it does not mandate specific methodologies. Where technology itself imposes a barrier to access or where educational materials simply are not available in an accessible format, educators may still meet their legal obligations by providing children with disabilities equally effective alternate access to the curriculum or services provided to other students. For example, if a teacher who has a blind student in her class is working from home and cannot distribute a document accessible to that student, she can distribute to the rest of the class an inaccessible document and, if appropriate for the student, read the document over the phone to the blind student or provide the blind student with an audio recording of a reading of the document aloud.
The Department encourages parents, educators, and administrators to collaborate creatively to continue to meet the needs of students with disabilities. Consider practices such as distance instruction, teletherapy and tele-intervention, meetings held on digital platforms, online options for data tracking, and documentation. In addition, there are low- tech strategies that can provide for an exchange of curriculum-based resources, instructional packets, projects, and written assignments.
The Department understands that, during this declared national emergency, there may be additional questions about meeting the requirements of federal civil rights law; where we can offer flexibility, we will. OSERS has provided the attached list with information on those IDEA timeframes that may be extended.
OSERS’ technical assistance centers are ready to address your questions regarding the IDEA and best practices and alternate models for providing special education and related services, including through distance instruction. For questions pertaining to Part C of IDEA, states should contact the Early Childhood Technical Assistance Center
 2

 UNITED STATES DEPARTMENT OF EDUCATION
Office for Civil Rights Office of Special Education and Rehabilitative Services
(ECTA) at ectacenter.org. For Part B of IDEA, states should contact the National Center for Systemic Improvement (NCSI) at ncsi.wested.org.
If you have questions for OCR, want additional information or technical assistance, or believe that a school is violating federal civil rights law, you may reach out through email at OCRWebAccessTA@ed.gov, call your regional office (https://ocrcas.ed.gov/contact-ocr), or visit the website of the Department of Education’s OCR at www.ed.gov/ocr. You may contact OCR at (800) 421-3481 (TDD: 800-877-8339), at ocr@ed.gov, or contact OCR’s Outreach, Prevention, Education and Non-discrimination (OPEN) Center at OPEN@ed.gov. You may also fill out a complaint form online at www.ed.gov/ocr/complaintintro.html.
Additional information specific to the COVID-19 pandemic may be found online at https://www.ed.gov/coronavirus.
         3

 UNITED STATES DEPARTMENT OF EDUCATION
Office for Civil Rights Office of Special Education and Rehabilitative Services
IDEA Timelines
As a general principle, during this unprecedented national emergency, public agencies are encouraged to work with parents to reach mutually agreeable extensions of time, as appropriate.
Part B of IDEA
State Complaints
Absent agreement by the parties, a state may be able to extend the 60-day timeline for complaint resolution if exceptional circumstances exist with respect to a particular complaint. 34 C.F.R. § 300.152(b)(1). Although the Department has previously advised that unavailability of staff is not an exceptional circumstance that would warrant an extension of the 60-day complaint resolution timeline, the COVID-19 pandemic could be deemed an exceptional circumstance if a large number of SEA staff are unavailable or absent for an extended period of time.
Due Process Hearings
When a parent files a due process complaint, the LEA must convene a resolution meeting within 15 days of receiving notice of the parent’s complaint, unless the parties agree in writing to waive the meeting or to use mediation. 34 C.F.R. § 300.510(a). While the IDEA specifically mentions circumstances in which the 30-day resolution period can be adjusted in 34 C.F.R. § 300.510(c), it does not prevent the parties from mutually agreeing to extend the timeline because of unavoidable delays caused by the COVID-19 pandemic.
Additionally, although a hearing decision must be issued and mailed to the parties 45 days after the expiration of the 30-day resolution period or an adjusted resolution period, a hearing officer may grant a specific extension of time at the request of either party to the hearing. 34 C.F.R. § 300.515(a) and (c).
Individualized Education Programs (IEPs)
If a child has been found eligible to receive services under the IDEA, the IEP Team must meet and develop an initial IEP within 30 days of a determination that the child needs special education and related services. 34 C.F.R. § 300.323(c)(1).
IEPs also must be reviewed annually. 34 C.F.R. §300.324(b)(1). However, parents and an IEP Team may agree to conduct IEP meetings through alternate means, including videoconferencing or conference telephone calls. 34 C.F.R. §300.328. Again, we encourage school teams and parents to work collaboratively and creatively to meet IEP timeline requirements.
Most importantly, in making changes to a child’s IEP after the annual IEP Team meeting, because of the COVID-19 pandemic, the parent of a child with a disability and the public agency may agree to not convene an IEP Team meeting for the purposes of making those changes, and instead develop a written document to amend or modify the child’s current IEP. 34 C.F.R. §300.324(a)(4)(i).
Initial Eligibility Determination
An initial evaluation must be conducted within 60 days of receiving parental consent under IDEA, or within the state- established timeline within which the evaluation must be conducted. 34 C.F.R. § 300.301(c). Once the evaluation is
    4

 UNITED STATES DEPARTMENT OF EDUCATION
Office for Civil Rights Office of Special Education and Rehabilitative Services
completed, IDEA does not contain an explicit timeline for making the eligibility determination but does require that the IEP be developed in accordance with 34 C.F.R. §§ 300.320-300.324 (34 C.F.R. § 300.306(c)(2)).
Reevaluations
A reevaluation of each child with a disability must be conducted at least every three years, unless the parents and the public agency agree that a reevaluation is unnecessary 34 C.F.R. § 300.303(b)(2). However, when appropriate, any reevaluation may be conducted through a review of existing evaluation data, and this review may occur without a meeting and without obtaining parental consent, unless it is determined that additional assessments are needed. 34 C.F.R. §300.305(a).
Part C of IDEA
State Complaints
Under 303.433(b)(1)(i), the lead agency’s state Complaint procedures permit an extension of the 60 day timeline for a written decision if “exceptional circumstances exist with respect to a particular complaint” or the parent or organization and the agency or early intervention services (EIS) provider agree to extend the time for engaging in mediation.
Due Process Hearings
A state may choose to adopt Part B procedures for Due Process resolution under 34 C.F.R. §§303.440 – 303.449 or Part C procedures under 34 C.F.R. §§303.435 – 303.438. Conditions for extending the applicable timelines are similar under both sets of procedures.
Under 34 C.F.R. §303.447(c), the hearing or review officer may grant specific extensions of the Due Process timeline at the request of either party. Under 34 C.F.R. §303.447(d), each hearing and each review involving oral argument must be conducted at a time and place that is reasonably convenient to the parents and child involved.
Section 303.437 (a) and (c) provides similar language regarding scheduling a hearing at a time and place convenient to the parents and hearing officers granting extensions at the request of either party.
Initial eligibility/Individual Family Service Plan (IFSP)
Under 34 C.F.R. §303.310, the initial evaluation and assessments of child and family, as well as the initial IFSP meeting, must be completed within 45 days of the lead agency receiving the referral. However, under 34 C.F.R. §303.310(a), the 45-day timeline does not apply if the family is unavailable due to “exceptional family circumstances that are documented” in the child’s early intervention (EI) records.
The Department has previously provided guidance to states indicating that weather or natural disasters may constitute “exceptional family circumstances.” The COVID-19 pandemic could be considered an “exceptional family circumstance.”
    5

ZOOM video-conferencing

We are hoping everyone stays safe and healthy during the coronavirus crisis (COVID-19). To meet the needs of our clients, and taking precautions, we are conducting meetings via ZOOM.

It is also a great way to stay connected with family and friends. To learn more about ZOOM, watch this video.

PROVIDING SERVICES TO CHILDREN WITH DISABILITIES DURING THE CORONAVIRUS DISEASE OUTBREAK

Special Announcement from

US Department of Education

QUESTIONS AND ANSWERS ON PROVIDING SERVICES TO CHILDREN WITH DISABILITIES DURING THE CORONAVIRUS DISEASE 2019 OUTBREAK

MARCH 2020

https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/qa-covid-19-03-12-2020.pdf?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term=

Can my child be exited from an IEP?

A student cannot be declassified – exited from special education – without an evaluation.  If the evaluation indicates the student is no longer in need of special education, then the parents may exercise their right to request an Independent Educational Evaluation (“IEE”).  Schools need not accept/agree with the independent evaluator’s conclusions, but the school must consider the conclusions  If the IEP Team still determines the student no longer qualifies, then the school issues a Prior Written Notice (“PWN”) and the student is exited from special education – unless the parents invoke stay-put and file Due Process seeking a determination by an Administrative Law Judge (“ALJ”) whether the student still qualifies for special education.  The student stays put in special education under his/her last agreed-upon IEP until such determination by the ALJ, and through any appeals.

Arizona's Education Law Firm

Child Find - what are a school's obligations to evlauate a child with suspected disabiity

CHILD FIND
All children with disabilities, including children with disabilities who are homeless children or are wards of the State - and children with disabilities attending private schools - regardless of the severity of their disabilities, and who are in need of special education and related services, must be identified, located, and evaluated and a practical method is developed and implemented to determine which children with disabilities are currently receiving needed special education and related services. 

Each State is required to have policies and procedures to ensure that “all children with disabilities . . . including children with disabilities who are homeless children or are wards of the State, and children with disabilities attending private schools, regardless of the severity of their disability, and who are in need of special education and related services, are identified, located and evaluated.”   This obligation is known as the “child find” requirement.  IDEA requires Child Find to include “children who are suspected of being a child with a disability … even though they are advancing from grade to grade.” The IDEA “child find” mandate is an affirmative ongoing obligation for schools.

Arizona in turn requires each public education agency (school districts and charter schools) to identify and evaluate all students suspected of having a disability, and to have policies and procedures in place for such identification and evaluation. Thus, at least in Arizona, the threshold is very low, requiring nothing more than a suspicion.

A school’s Child Find obligation is triggered where there is knowledge of, or reason to suspect a student has a disability, and reason to suspect that a student may need special education services to address that disability.  The threshold for suspecting that a child has a disability is relatively low.  A school's appropriate inquiry is whether the child should be referred for an evaluation, not whether the child actually qualifies for services. 

Beyond the initial 45-day screening, under Child Find, schools are obligated not only to seek out disabled students, but to also evaluate or provide services when it has “knowledge” of a disabled child.  Knowledge includes poor grades, behavioral concerns, and/or “off-task” classroom behavior.  Parents expressing concern their child might have autism may trigger an evaluation.  Reported anxieties also trigger the obligation to evaluate.  

Thus, there are no magic words that trigger the duty to evaluate; there need be nothing more than suspicion, possibility, or concern.  The suspicion threshold is relatively low because the key is not whether the child actually qualifies for special education services, but whether the child should be referred for an evaluation. 

The school district responsible for child find:

·         Non-profit private schools district in which non-profit school is located. 

·         For-profit private schools, the district where the parent resides. 

Under Arizona statutes, homeschooled students are considered private school students. 

Charter schools are responsible for child identification activities for students enrolled in the charter school.  However, charter schools are not responsible for outreach under the child find regulations because charter schools have no specific geographical boundaries.

Arizona's Education Law Attorneys

What does a 504 Plan look like?

Here is a sample 504 Plan. 

SCHOOL NAME Accommodation Plan Section 504 of the Rehabilitation Act of 1973 Student:                                               School Year:   2019-2020 Conference Date:  Grade:  Teacher:  Parents:   Address: Phone:    Is there a documented physical or mental impairment, which substantially limits a major life activity?               Yes            No       Is this student qualified under IDEA?             Yes            No       Does this student require accommodations designed to meet his/her needs as adequately as the needs of non-handicapped students?     Yes            No       Nature of Disability: Data Sources Used for making 504 decision: Check the major life activities that are substantially limited by the physical or mental impairment:  Caring for oneself                           Speaking  Performing manual tasks                Breathing                                        Hearing                                           Learning  Eating                                             Reading  Sleeping                                          Concentrating  Walking                                          Thinking  Lifting                                            Communicating  Bending                                          Working  Other                                                              None                                                             Description of how disability affects major life activity: People responsible for accommodations: Describe the appropriate placement: How will the accommodations address the effects of the physical or mental impairment? Accommodations for the Student: Review/Reassessment Date:  Participants Names                                         Title: Parent Signature_____________________________________Date________________

 Arizona's Education Lawyers, Kirsch-Goodwin & Kirsch

How does a school determine a student is eligible for a 504 Accommodation Plan?

                    

Section 504 of the 1973 Rehabilitation Act contains a much broader definition of a student with disabilities than does the Individuals with Disabilities Education Act (“IDEA”), and thus protects students with disabilities who may not qualify for an IEP by guaranteeing them access to necessary accommodations during both instruction and assessments.  Students with a medical condition such as allergies, asthma, and attention difficulties may receive accommodations through the development of a 504 Accommodation Plan (a “504 Plan”).  The Americans with Disabilities Amendments Act (ADAAA) of 2008 increased the number of individuals who are eligible for protections and services under both the ADA and Section 504 of the Rehabilitation Act of 1973.[1]  An impairment in and of itself does not mean that a student has a disability.  There must be a substantial limitation on one or more major life activities, which results from the impairment, to be considered as a disability under Section 504 and entitling a student to FAPE.

In order to be afforded the protections of Section 504, a student must meet the definition of a person with a “disability.”  A student has a disability if he/she:

1.      Has a physical or mental impairment that substantially limits one or more major life activities; or

2.      Has a record of such impairment; or

3.      Is regarded as having such an impairment; and

4.      The impairment substantially limits a major life activity.

A school must make an individualized determination as to whether a student has a physical or mental impairment that substantially limits a major life activity.   In light of the ADAAA, the standard used to determine whether a physical or mental impairment substantially limits one or more major life activities is: whether or not “the individual's important life activities are restricted as to the conditions, manner, or duration under which they can be performed in comparison to most people.”  The impairment must create a significant barrier to the student’s ability to access the same educational opportunities afforded to students without disabilities. It is important to remember that “substantial” doesn’t really mean “substantial” since the ADAAA was passed.  

Follow these steps:

1.      Convene a 504 eligibility team meeting.  Assemble a properly comprised 504 team. Such a team includes individuals who are familiar with and knowledgeable about the student, the evaluation data that the team will review and discuss, and the placement options if the student eligible.

2.      Conduct an appropriate evaluation.  Always draw upon information from a variety of sources.  A variety of sources could include teacher observations, aptitude and achievement tests, adaptive behavior assessments, and the student's physical/health/medical condition.   Schools must not rely on only one source of information, such as a medical doctor script saying the child needs a 504, or a parent saying their child needs certain accommodations.

3.      Apply the Section 504 eligibility criteria.  Eligibility under Section 504 is based on the evaluation where the student is determined to have a "physical or mental impairment" that "substantially limits one or more major life activities."  28 C.F.R. § 35.108(a)(1)(i). To determine substantial limitation, compare the student's ability to perform a major life activity to the average peer.  28 C.F.R. § 35.108(d)(1)(v).   

Increasingly, parents may be requesting 504 Plans, or more accommodations on existing 504 Plans, so that their children can have accommodations for SAT testing or similar testing.  Upon receipt of these requests, schools should conduct an appropriate evaluation and apply the appropriate eligibility criteria to screen out students who are truly not eligible. 

Arizona's Education Lawyers

---

[1] 42 USC 12102 (4)(A) states, "The definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act." (Emphasis Added)