On March 18, 2020, ISBE issued guidance on providing special education during the current mandatory two-week school closure. While the guidance responds to some of the questions arising from this unprecedented situation, neither the U.S. Department of Education nor Congress has provided flexibility with respect to IDEA rules, and the State is correspondingly constrained. As we described in our last post, the big picture message is to do your best to provide services to students with disabilities and meet applicable deadlines. Be creative, document your efforts, and expect compensatory education claims once we get back to school. Below are the key takeaways from ISBE’s guidance.
Timelines. The new guidance aligns with the information we provided in our last post: timelines and deadlines calculated in calendar days (including annual reviews) remain on track, timelines calculated in school days (including evaluations) are on hold for the two weeks of mandatory closure. While the Department of Education guidance states that teams are not required to meet in person while schools are closed, the ISBE guidance states that parent consent is needed to proceed with a meeting via telephone or video conference (in line with 34 C.F.R. 300.328). ISBE further provides that no flexibility is available with respect to students transitioning from early intervention services to an IEP or IFSP on their third birthdays.
Due Process Hearings and Mediations. Hearings and mediations are not automatically postponed. Parties should work with hearing officers and mediators with respect to continuances and the potential to conduct hearings or mediation via teleconference or videoconference.
FAPE. In line with the guidance from the Department of Education, the ISBE guidance provides that if the district is not providing educational services to general education students, it does not need to provide services to students with IEPs or 504 plans either. ISBE does recommend providing continuity of education opportunities to all students, including students with disabilities. We anticipate that, if the closure continues beyond March 30, more formal learning opportunities will be required and additional guidance will be forthcoming. Further, ISBE notes that if a student does not receive services for an extended time, the IEP team will need to make an individualized compensatory education determination.
Providing Services. Schools can provide related services via teletherapy or video therapy, but Medicaid reimbursement is currently uncertain. Schools are not prohibited from providing at-home services directly to students with disabilities as part of continuing educational opportunities but must comply with applicable agreements, contracts, and directives from the Occupational Safety and Health Administration, the Department of Labor, and the Department of Public Health. While such services are not currently prohibited, given the recommendation for social distancing and possible shelter in place directives and the designation of these two weeks as non-instructional days, we expect in-home services to be exceedingly rare.
Residential and Day Schools. Illinois residential facilities are not required to close but their educational components must cease during these two weeks. Out-of-state residential facilities are not impacted by the Governor’s order but, if they do close, the district is responsible to coordinate and oversee any necessary transportation and such expenses are reimbursable. With respect to paying tuition to private schools closed during the mandatory closure, “ISBE is seeking flexibility to allow private special education schools to bill and receive the tuition per diem rate that is set by the Illinois Purchased Care Review Board.”
We anticipate that the school closure will last beyond March 30, 2020, and that the requirements and guidance for an extended closure may differ from what is currently in effect. We will continue to monitor developments to keep you informed. Reach out to your Franczek attorney with questions about compliance with the current guidelines as well as planning for continued remote learning.