Frequently Asked Questions
Regarding the COVID-19 Emergency
and Special Education
ARE SCHOOL DISTRICTS ASSESSING CHILDREN WITH SPECIAL NEEDS?
On September 30, 2020, the California Department of Public Health issued guidance to local education agencies, which includes school districts and county offices of education, that they must continue to conduct special education assessments, including full and individual evaluation for students suspected of having a disability as well as triennial assessments, while providing distance learning. These assessments can be conducted in-person.
WHAT IS SB 98 AND WHY DOES IT MATTER?
In June 29, 2020, California Governor Gavin Newsom signed into law Senate Bill 98 (SB 98), which is primarily a funding bill that includes many provisions of great importance to school districts, charter schools and county offices of education (LEAs), parents and students.
SB 98 is a fairly comprehensive bill (171 pages by my count) that includes some flexibility in its implementation. Please note that although school districts have been provided some flexibility in providing special education during the pandemic, they are still required to provide children a free appropriate public education (FAPE) that meets their unique needs as guaranteed under the Individuals with Disabilities Education Act (IDEA).
IS MY CHILD'S SCHOOL PERMITTED TO OFFER DISTANCE LEARNING?
SB 98 specifies that distance learning may be provided in two circumstances:
As a result of an order or guidance by a public health officer
and for students who are medically fragile, would be put at risk, or are self-quarantining.
Otherwise, SB 98 states that LEAs are to offer in-person instruction to the greatest extent possible.
Additionally, LEAs have substantial flexibility in determining what instructional models to adopt, including hybrid or mixed-delivery models of instruction that incorporate distance learning.
Of note is that distance learning must include daily live interaction with certificated employees and peers for instruction, progress monitoring, and maintaining school connectedness.
LEAs are required to document daily student participation, including evidence of online participation through the completion of assignments and tests or contact between the LEA and the student or the parent.
WILL SB 98 AFFECT MY CHILD'S IEP?
Among other changes to the California Education Code, SB 98 amends section 56345 to require that IEPs include a description of the means by which a student's IEP will be implemented under emergency conditions, such as during the pandemic, in which instruction or services or both cannot be provided to the student at school or in-person for more than 10 school days. The description is to include all of the following:
Special education and related services
Supplementary aids and services
Extended school year services
This description must be included in the development of a student's initial IEP or during the next regularly scheduled revision of the IEP, and must take into account public health orders.
A FREE APPROPRIATE PUBLIC EDUCATION WHEN SCHOOL SITES REOPEN
What has California done in an attempt to ensure a safe reopening of public school sites?
A task force in California has developed plans for the reopening school sites. You can see a summary of their general plans in A Guidebook for the Safe Reopening of California's Public Schools.
How will my child's school district ensure my child receives a FAPE under the Individuals with Disabilities Education Act during the pandemic?
The Guidebook includes the following information:
Public schools and school districts are to work with each family to determine what a free appropriate public education (FAPE) looks like for each child. This may be different from what was included the child's IEP prior the outbreak.
School districts and county offices of education are to use their models for all students as a basis for establishing a FAPE.
These local education agencies are to ensure children with disabilities are included in all offerings of school education models by using the IEP process to customize educational opportunities and provide supports where necessary. It is recommended that Distance learning plans or addendums to IEPs are to be provided to children to address distance learning needs during immediate or future site closers.
My child fell behind educationally during the school site closure. How will my child's teacher know where my child is when school resumes?
In July, the California Department of Education released new diagnostic and assessment tools and strategies teachers can use to identify where individual students are in their learning when they return to school.
In addition to assessments, teachers may use several measures of educational performance from various sources, such as classroom assessments, student essays, and class projects to determine where children are in their learning and identify areas in which they may need additional support.
My child was not provided with various services included in her IEP. Will she be provided with compensatory services to make up for this educational loss?
When students return to school, school districts must determine if individual students are to receive make-up services for those services that were missed. This is called compensatory education, and generally, the need for compensatory education will be determined through assessment and the IEP process when students return to school. Any disagreement you may have with a school district over instruction, services and compensatory education are subject to due process procedures.
IMPLEMENTATION OF THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT
Are my child's rights under the Individuals with Disabilities Education Act (IDEA) at risk due to school closures?
No. As part of the Coronavirus Aid Relief, and Economic Security (CARES) ACT that Congress passed last month, U. S. Secretary of Education Betsy Devos was given thirty days to decide whether to propose possible waivers to portions of the IDEA to provide states and school districts flexibility to respond to the health crisis. Ms. DeVos declined to seek Congressional waivers for the IDEA rights to a free appropriate public education (FAPE) in the least restrictive environment (LRE).
What do I do if I feel that the school district is not providing adequate support for my child?
Under the IDEA and related state law, your child's school district is obligated to provide IEP supports to meet your child's unique needs. If that is not happening, consider contacting a special education attorney or advocate for help.
IEP MEETINGS AND EVALUATIONS
Must my child's IEP be amended to reflect that they are being provided with distance learning?
According to the California Department of Education (CDE), “if the [school district] can continue providing special education and related service as outlined in the IEP, or an agreed upon amendment to the existing IEP, through a distance learning model, they should do so.”
The CDE states that it is not necessary for IEPs to be amended for every student solely for the purpose of discussing the need to provide services away from school, because that change must necessarily occur due to the COVID-19 pandemic.
The IEP that was in effect at the time of the school closure is the operative IEP. And school districts, to the greatest extent possible, should provide the services called for in the IEP in alternative ways.
The CDE's views coincide with the U. S. Department of Education's March 2020 guidance statements which emphasize that federal disability law allows for flexibility in determining how to meet each student's unique needs, and the determination of how a free appropriate public education is provided may need to be different during this unprecedented time of national emergency.
May an IEP meeting be held now to consider a proposed change to my child's IEP?
Parents or school district staff may request an IEP team meeting or an amendment to a child's IEP. School district staff may convene an IEP meeting, particularly when necessary to address unique circumstances related to distance learning.
Some school districts have amended student's IEPs to include a distance learning plan that outlines the special education services to be provided temporarily to the student during the health crisis.
My child's school district sent me a prior written notice. How should I respond?
Under the IDEA, a school district is required to provide a prior written notice a reasonable time before” it proposes or refuses to initiate or change the identification, evaluation, placement or the provision of a free, appropriate public education (FAPE). The notice must include the placement or service (such as distance learning) proposed or refused by the school district and a description of each procedure, assessment, record, or report used by the school district to make its decision.
If you receive a prior written notice, you might consider contacting an attorney or advocate if you have questions about the prior written notice and how to respond to it.
You might agree to a special learning model, such as distance learning, but not that the special learning model offers your child a FAPE to meet your child's unique needs. Also, the unilateral offer by the school district fails to offer you an opportunity to participate in the development of your child's IEP, which may violate IDEA procedures.
Please note that a prior written notice alone is insufficient to change a student's IEP. An IEP meeting must be held to formalize any change in service or placement.
It is this law office's belief that an IEP meeting is required to change how services are delivered to a child with disabilities. However, your school district may not consider the change to distance learning to be a change to the IEP. In that case, you may not be asked to consent to a change to your child's IEP. Instead, a Distance Learning Plan may act as a supplement to your child's IEP. Your written consent may be needed if a Distance Learning Plan is attached to your child's IEP.
Should you formally agree to change your child's current IEP to enable the school district to use distance learning?
Whether your child's school district uses a prior written notice or an IEP meeting alone to make changes to the your child's IEP, you should be very wary of changing your child's IEP. Until students return to school, you should insist that your child's current IEP include a written statement to the effect that you do not agree to change your child's current IEP; you do not agree that distance learning offers a child a FAPE; and your child's current IEP will be fully implemented when your child returns to school.
If when school resumes, your child is to be instructed in a way that differs from what is offered in your child's IEP, you should do your best to make sure their specific unique needs are to be met. If you need help, contact a special education attorney.
My child needs a complete neuropsychological evaluation. What do I do to get one?
Reach out to the neuropsychologist you have chosen to assess your child and speak to them. Each practitioner may approach the challenges with the coronavirus differently. In some instances, it may be possible for the neuropsychologist to complete a comprehensive patient history, an interview with parents and teachers, and some testing and/or remote observation. In-person visits may possibly be scheduled for this summer, if needed to add to or complete preliminary reports.
SPECIAL EDUCATION DUE PROCESS CASES
I need to send scanned documents to my attorney, but I don't have a scanner at home. How can I get them to her?
If you don't have a scanner available, you can use a scanning app on your phone. There are many good ones available. You might try Adobe Scan (Apple App Store/Google Play) or Microsoft Office Lens (Apple App Store/Google Play).
Can I file a special education due process complaint against the school district now?
Yes. The Office of Administrative Hearings, which handles special education due process complaints in California, has implemented special procedures to ensure continuation of their services. Mediations and hearings are now to be provided by telephone or video conference.
Will I be able to participate in a resolution meeting now?
As part of the resolution process under the IDEA, parents and education agencies, such as school districts, are required to participate in a resolution meeting within 15 days of the filing of the due process complaint, unless both parties waive it.
OSEP points out that there is nothing in the IDEA preventing parents and education agencies from mutually agreeing to extend the 15-day timeline. As a special education attorney, this is something I sometimes advise the parents I represent when there is a problem with scheduling the meeting within the 15-days.
The exception to this 15-day timeline is when a request for an expedited due process hearing is filed regarding a disciplinary removal of a student with special needs. In that case, the resolution meeting must be held within 7 days.
OSEP also advises that resolution meetings can be held virtually, which is particularly appropriate as a means of social distancing. Prior to the COVID-19 outbreak, my clients and I often participated in resolution meetings by telephone conference. I have found this a convenient way for busy folks to meet. Since the outbreak, parents and I continue to participate in resolution meetings in this way.
Please note that some of this information may need to be updated.
Please stay safe.