On March 21, 2020, the United States Department for Education (DOE), Office for Civil Rights (OCR), issued a “Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary, and Secondary Schools While Serving Children with Disabilities” (Supplement”).
In the Supplement, OCR advises school districts that 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 (ADA), should not prevent school districts from offering educational programs through distance instruction. School districts must provide a free appropriate public education (FAPE) consistent with the need to protect the health and safety of students with disabilities, as well as those providing the education, specialized instruction, and related services.
OCR states it understands that, during this national emergency, schools may not be able to provide all services in the same manner they typically are provided. In that regard, federal law allows for flexibility in determining how to meet the individual needs of students with disabilities. The determination of how FAPE will be provided may need to be different during this unprecedented national emergency. OCR advises that, where there has been a delay in providing services or making decisions regarding how to provide services, then once school resumes, the IEP team must make an individual determination regarding the provision of compensatory education.
Addressing the use of distance technology, OCR states that “[w]here 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.” The Supplement encourages parents, educators, and administrators to collaborate to meet the needs of students with disabilities, including consideration of “distance instruction, teletherapy and tele-intervention, meetings held on digital platforms, online options for data tracking, and documentation.” OCR also notes that low-tech strategies such as instructional packets, projects, and written assignments may be an appropriate exchange for curriculum-based resources.
The Supplement provides guidance regarding timelines for state complaints, due process complaints, individual education programs (IEPs), and evaluation team reports (ETRs). OCR continues to require school districts to meet and develop an initial IEP within 30 days of the eligibility determination. IEP reviews also must be conducted annually, but OCR notes that such reviews can be conducted through alternate means, such as videoconferencing or conference telephone calls. OCR further states that, “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.”
OCR advises that an initial evaluation still must be completed within 60 days of receiving parental consent. The reevaluation also still must be conducted every three years unless the parents and school district agree a reevaluation is unnecessary. OCR reminds school districts that a reevaluation may be conducted through a review of existing evaluation data, and that the review may occur without a meeting and without obtaining parental consent, unless it is determined that additional assessments are needed.