Legal Guidance for Addressing Special Education Issues When Resuming Operations During the Pandemic
During this workshop, you learned how to navigate special education issues as schools begin to re-open during the pandemic.
- Considering requests for compensatory education
- Prioritizing and catching up on evaluations and IEP meetings
- Ensuring parent participation at virtual IEP meetings
- Responding to IEE requests
- Preparing for due process hearings, CDE complaints and OCR complaints likely to result from the school closure period
Q: Can the IEP team record a virtual IEP meeting?
Yes. Either parents or the charter school may audio record a virtual IEP meeting. A virtual IEP meeting should follow the same policies and protocols as an in-person IEP meeting where both the parent and the charter school have the right to audio record the meeting pursuant to Education Code Section 56341.1(g). If parents provide written notice that they intend to record the IEP meeting at least 24 hours in advance of the meeting, the charter school must allow the recording. However, if the charter school initiates the audio recording and parents object or refuse to attend an audio recorded meeting, the charter school is not permitted to record the meeting. The law does not address video recording and therefore if your program is going to video as well as audio record, we would recommend including this in the notice and not doing so upon parent objection.
Q: Are charter schools permitted to provide in-person services, whether on campus or in the home, during mandatory distance learning?
The current order by the California Department of Health restricts in-person instruction for those counties on the monitoring list for the last 14 days. It is not clear whether special education services or assessments were meant to be included within that restriction. We would recommend that schools reach out to their local county department of health before proceeding with services or assessments on campus while the in-person instruction restriction remains in effect.
Q: Are charter schools required to provide in-home and/or 1:1 services upon request from parents?
It depends upon the needs of the individual student. Whenever a charter school receives a request for additional, new, or different services, the IEP team should meet and discuss the request. During distance learning, if in-home and/or 1:1 services are requested, the team should meet to review the student’s present levels, progress on goals, and evaluate whether the student requires the requested services in order to access the curriculum and make meaningful educational progress. The team should consider information from parents, teachers, service providers, and/or doctors that have relevant information regarding the student’s disability and progress.
If the team determines the student requires the requested service and/or other new/additional services, an IEP Amendment should be executed to reflect the necessary changes. If the team determines the student does not require the requested service, the charter school should provide parent with prior written notice of the decision to decline the request clearly detailing the data considered and an explanation regarding the decision.
Of course, any in-person services in the home should carefully follow state and local department of health orders and guidance regarding health and safety. We would recommend seeking guidance directly from the local county department of health before proceeding with any in-home services.
Q: Do special education service minutes count toward the minimum number of instructional minutes per day during the 2020-2021 school year?
Generally, yes. Under SB 98, instructional minutes are defined in two ways: in-person instruction, and distance learning. When students are being provided in-person special education services, any services provided under the “immediate physical supervision and control of an employee of the [charter school] who possesses a valid certification document” will count toward the minimum number of instructional minutes. Education Code Section 43502(e)(1). Services delivered via distance learning will count toward the minimum number of instructional minutes “based on the time value of assignments as determined, and certified to, by an employee of the [charter school] who possesses a valid certification document.” Services delivered via distance learning must be evaluated and certified by a properly credentialed staff member, and the time value of those services, as determined by the credentialed employee, will count toward minimum instructional minutes. These assignments can be synchronous or asynchronous.
Most schools are working on schoolwide schedules for 100% distance learning (while still restricted from providing in-person instruction) and schoolwide schedules for a combination of both in-person instruction and distance learning. Please let us know if we can assist you in evaluating your schedules and plan for documentation of distance learning against the requirements of SB 98.
Q: Can a charter school find a student eligible for special education and begin provided services based upon a partial assessment or no assessment during the period in which in-person assessments are unavailable or impractical due to state and local health orders?
Yes, with caution. IDEA’s “child find” provisions require charter schools to identify, locate, and evaluate students who may be in need of special education and related services. The term “evaluate” does not require any specific level or type of assessment procedures. Accordingly, an IEP team composed of the legally required members is not prohibited from finding a child eligible for special education and related services based upon informal data, records review, and/or partial assessments.
However, charter schools should proceed with caution when finding students eligible based upon informal data or partial assessments because:
- A partial assessment may be deemed invalid, thus warranting an Independent Education Evaluation; and
- Once a student is found eligible for special education, they are entitled to all rights and protections under IDEA and corresponding state law. The student may only be exited from special education upon a decision by the IEP, subject to all procedural safeguards.
Charter schools should diligently seek out and identify students who may need special education services during distance learning. However, in the event a full assessment cannot be completed based upon public health guidance, we recommend contacting our office to discuss all relevant considerations.
Q: Should charter schools amend students’ IEPs to reflect an offer of FAPE in the virtual or hybrid setting?
If the services or the delivery of those services are different than described in the IEP then technically an IEP amendment should be considered. While the initial guidance from the State and U.S. Department of Education did not require IEP revision, more recent CDE guidance from June 2020, stated that LEA’s should consider IEP amendments given the duration and overarching changes to education delivery in many cases. To cut down on the amount of IEP meetings required, schools should consider seeking parent agreement to amend the IEPs on paper only without the need for a formal IEP meeting.
Please note that when IEP’s are developed or updated, SB 98 requires charter schools to include a description, developed by the IEP team, of the means by which the IEP will be implemented under emergency conditions in which instruction and services, or both, cannot be provided to the student either at the school or in person for more than 10 school days. Education Code Section 56345(a)(9)(A). In this section, charter schools must include the IEP team’s agreement regarding implementation of all of the following in the virtual or hybrid setting whenever students are unable to receive in-person instruction:
- Special education and related services
- Supplementary aids and services
- Transition services
- Extended school year services
Education Code Section 56345(a)(9)(A)(iii).
With inclusion of this description, charter schools will not be required to fully revise the offer of FAPE in the future, but rather implement the plan pre-established in the IEP.
Q: How should the IEP date any amendments to include virtual or hybrid services?
Amendments to include the requirements of SB 98 (above) should be dated through Student’s next annual/triennial IEP date. The emergency statement detailed above is to be included in all IEPs going forward to provide for a plan given any future emergency that may arise rendering the student unable to access in-person services for a period of 10 school days or more.
Q: How does an IEP team measure students’ progress during distance learning?
Service providers should continue tracking student’s progress in the same manner as if students were attending on-site. Providers should maintain service logs, document progress on goals via the assessment tools identified in the IEP, and monitoring students’ progress in the general education curriculum. Progress on goals should be reviewed and considered at an IEP meeting to determine whether any changes to the IEP are necessary.
DATE & TIME:
July 24, 2020
Lisa Corr, ESQ.