Educational Assessments in the Age of COVID-19
Under state and federal law, school districts have a firm schedule for conducting special education assessments and holding subsequent IEP meetings. The state’s school closures, however, have presented challenges for districts in conducting certain aspects of their assessments.
In order to promote social distancing and help districts address this challenge, the governor signed SB 117 in March of this year. That law appeared to delay or suspend the student’s right to receive an assessment plan within fifteen days after referral. The law suggests that districts may toll those timelines during the period of school closure and restart assessments once schools open and the regular school session resumes. Importantly, however, SB 117 considers a school to be closed even if it is providing distance learning to its students. Therefore, if districts decided to prolong their distance learning protocols into the 2020-2021 school year, SB 117 could create a situation where the assessments of many students could be postponed indefinitely. This surely was not the legislature’s intent.
Although well-intentioned, SB 117 has left a troubling ambiguity in the system. For example, consider what the law hasn’t changed:
- SB 117 can only waive state law requirements. It does not waive any federal requirements imposed under IDEA. The federal government, to date, has not waived any of the IDEA timelines. As such, timely initial assessments may still technically be required.
- It does not waive the district’s responsibility to conduct triennial assessments when they are due; yet it does not seem reasonable to suggest that some routine assessments are safe while others are not.
- It does not alter any other part of the special education timeline, including the deadline for holding an initial IEP meeting to determine eligibility and address students’ areas of need. Since these deadlines are triggered by the completion of an assessment, some commentators have opined that SB 117 “therefore extends timelines for completing special education assessments, and convening IEP teams to review them, only by implication” (AALRR article, emphasis in original). If the governor and legislature do not clarify this point, it will undoubtedly raise a number of thorny issues for OAH to determine in the 2020-2021 school year.
- Similarly, SB 117 does not waive districts’ obligation to have an IEP in place at the start of the school year.
- Finally, SB 117 does not appear to alter a district’s Child Find obligations. Therefore, if a district was on notice that a child had a disability before the school closure, it should still be required to assess that child to determine whether he or she requires special education. Although there is no firm statutory deadline for when a district must assess under Child Find, it is unlikely that an indefinite delay would be deemed acceptable by OAH or the federal court.
Further complicating the situation, on March 13, 2020, Governor Newsom signed Executive Order N-26-20, requiring the CDE to issue guidance on meeting requirements under the IDEA. Initial guidance was provided on March 20, 2020 and stated that “until and unless USDOE ultimately provides flexibilities under federal law, LEAs should do their best in adhering to IDEA requirements, including federal mandated timelines, to the maximum extent possible. LEAs are encouraged to consider ways to use distance technology to meet these obligations.”
Thankfully, new tools are becoming available to school districts which would permit them to remain in compliance under this guidance and under IDEA. Districts can continue to issue surveys and conduct interviews with parents and teachers without the use of face-to-face meetings. Surveys can be sent via US Mail and interviews can be conducted by telephone. Further, although there are some of the elements of the special education assessment process that have traditionally been conducted by in-person communication between the assessor and the student, many of those tools are becoming available for use through telepractice. For example, Pearson has recently endorsed the use of telepractice for conducting the WISC-V (even though it is not standardized for this mode). Pearson’s website provides guidance on how to present the assessment in an effective, interactive telehealth format. It has also made telepractice options available for the PPVT-5, WIAT-III, the CELF 5, and many others.
Using these tools, we hope that districts will continue to meet their obligations to find and assess all children who require special education support.