State and Federal Agencies Provide Updated Guidance for Special Education Programming and Advocacy During COVID-19
Guidance from the state and federal departments of education have made clear since the inception of the COVID-19 pandemic that students with disabilities are still entitled to a free and appropriate public education (“FAPE”). Here, we will review updated guidance and recent legislation that directs the implementation of IEPs during the pandemic, and provide suggestions for how you can advocate for your child.
IEPs and Distance Learning
California Education Code Section 56345 was amended in June 2020 to require IEPs to include an individualized description of how a student’s educational program will be implemented “under emergency conditions,” such as during periods of distance learning as a result of the pandemic. This description must state how related services, supplementary aids, post-high school transition services (if applicable), and extended school year services will be delivered. This requirement applies to initial IEPs, or the next regularly scheduled IEP, occurring after the June 29, 2020 legislation date. You may have seen these descriptions in “distance learning plans” or “emergency services plans,” that school districts have issued during this distance learning period.
Updated guidance from the California Department of Education (“CDE”) issued September 30, 2020 clarifies that distance learning or emergency services plans are “an element of the overall offer of FAPE, and should help an LEA to plan for how to address the needs of an individual student in an emergency.” As a result, the CDE guidance notes that parents must be involved in the development of distance learning or emergency services plan, and the district must obtain consent from parents regarding the plan, as it is part of the IEP.
You and your IEP team should create this distance learning plan together. The law requires an “individualized description,” meaning services should be tailored to consider your student’s unique needs. As a caregiver, and primary teaching assistance to your child over the past few months, you are in a unique position to guide this conversation. Come to your IEP meeting with specific examples of what has and has not worked for your student so far, as well as notes documenting areas of regression that you may be seeing. You may want to create a list of observations in advance of the meeting to help the team craft a plan for continued distance learning.
Opportunities for In-Person Supports and Services
Many students with disabilities cannot effectively access their curriculum and related services remotely. Federal and state guidance has acknowledged this in updated guidance, providing pathways for families and school districts to identify in-person service options.
The California Department of Education (CDE) released guidance on April 9, 2020 that permits in-person special education services during distance learning. Districts may provide in-person services as necessary, “in order to maintain students’ mental/physical health and safety for the purpose of supporting the student in accessing the alternative options for learning being offered.” These services include those provided by physicians, psychologists, nurses, physical and occupational therapists, social workers, speech pathologists, and behavioral health workers.
CDE updated its April 2020 guidance on September 30, 2020. The updated guidance cited to recent public health protocols issued by the California and L.A. County Department of Public Health in providing that districts were permitted to provide in-person supports and services, and that districts do not need to receive a waiver through the local public health office before offering in-person services. The guidance specifically notes that “school officials should develop and implement plans in collaboration with local health officials and school-based staff…but are not required to receive express approval from the local health department.”
If you believe your child requires in-person support to access learning and related services, request an IEP to discuss this option. Prepare for the meeting by compiling details and specific examples that demonstrate your child’s inability to access remote learning, or if applicable, risk of harm to their mental or physical health. Remember that IEP team should make an individualized determination of the need for in-person services based on your child’s unique needs.
District’s affirmative assessment obligations have not been waived during the COVID-19 pandemic. In March 2020, California Senate Bill 117 (“SB 117”) had initially provided for a waiver of the 15 day timeline for districts to issue new assessment plans. However, SB 117 made clear that it did not “waive any federal requirements imposed under the federal Individual with Disabilities Education Act.” Senate Bill 117, Section 8 (Chapter 3, Statutes of 2020). Additionally, this section of SB 117 was rendered inoperative as of July 1, 2020 through Senate Bill 820, Section 56 (Chapter 110, Statutes of 2020).
As a result, current state and federal guidance mandates that districts must adhere to all state and federal special education assessment timelines, including timelines for both initial evaluations and re-evaluations. Additionally, state and local guidance from CDE and public health authorities provides that districts are permitted to conduct in-person testing. In late August and early September 2020, public health authorities from California and Los Angeles County issued guidance establishing specific parameters for districts to follow in providing in-person assessments. Los Angeles County Department of Public Health guidance specifically provided that “specialized, in person services” were permitted, including “assessments, such as those related to…Individualized Educational Plans and other required assessments.” If you are advised that District staff cannot conduct in-person assessments, ask if there are outside assessors the District is willing to work with to conduct the assessments.
Prior Written Notice
Given the changes to delivery of instruction and services during COVID-19, state and federal guidance has emphasized the importance of the District’s obligation to notify parents of proposed changes to their child’s IEP. USDOE guidance specifically provides that parents must be informed of the changes to a child’s IEP, “a reasonable time before the public agency” proposes changes. Notably, this guidance provides that the prior written notice requirements apply “even if the IEP is amended without convening an IEP team meeting.” CDE guidance emphasizes that Districts must ensure “that parents are fully informed of how their child’s special education and related services needs are addressed during remote learning.”
If delivery of the supports and services in your child’s IEP has been altered to accommodate distance learning, you are entitled prior written notice from the District specific to your child and their IEP. Prior written notice should include the following: a description of the District’s proposed changes; an explanation of why the district proposes the change, a description of each evaluation, record or report used as a basis for the proposed change; a statement of procedural safeguards and where these can be obtained; a description of other options considered by the IEP team and why those options were rejected, and a description of factors relevant to the District’s proposal.
We hope that this update provides support for you and your child as you navigate the challenges of distance learning. The law provides options for in person support. Woodsmall Law Group remains open to serve our community. If you have a question regarding this or material or would like to arrange a free one-hour consultation to discuss your child’s needs, please contact our offices at (626) 440-0028.