In a previous post, we forecasted further guidance from ISBE and the U.S. Department of Education to provide additional clarity for schools in regard to how to best serve students with disabilities during school closures as a result of the COVID-19 pandemic. Earlier this week, ISBE posted an updated FAQ regarding providing special education during remote learning as Illinois schools remain closed for the remainder of the 2019-2020 school year. The 17-page document reviews current requirements, repeating that federal and State law requirements related to students with disabilities are still in effect despite the suspension of in-person instruction. The FAQ tracks closely with federal guidance. And while ISBE provides some guidance regarding how Districts should offer remote services, many issues are left to schools and their counsel to navigate.
At this time, neither the U.S. Department of Education nor ISBE has provided substantial flexibility to deviate from State and federal requirements regarding special education. Furthermore, in its guidance, ISBE reiterated that the IDEA, Section 504, and Title II of the ADA should not prevent any school from offering educational programs through remote learning. Below, we have identified the key areas where current State and federal laws are still in effect:
- FAPE: ISBE considers remote learning days as attendance days, meaning that schools and school districts are required to continue providing eligible students with FAPE during remote learning days through appropriate special education and related services provided through distance instruction. While schools may not be able to provide all services in the same manner, the U.S. Department of Education has stated that it intends to “offer flexibility where possible,” but has not officially relaxed any requirements related to the provision of FAPE.
- IEP and Evaluation Timelines: At this time, no flexibility has been granted with respect to complying with IEP and evaluation timelines as proscribed by State and federal law. Furthermore, all federal requirements regarding referrals and evaluations are still in effect. However, schools and school districts do have the option to work with families to reach agreements on extensions of relevant timelines.
- Consent and Participation: Schools are still required to obtain informed consent and should consider utilizing e-mail, electronic signatures, or other means for obtaining required written consent. The requirement to involve parents in IEP meetings, including providing interpreter services, remains in effect, though meetings need to occur virtually. Schools and districts should clearly document all attempts to contact parents and provide services during remote learning.
- Child Find: Federal requirements concerning referrals and evaluations to comply with child find obligations are still in effect. Schools should consider their options in terms of assessment procedures, rather than direct student contact, to appropriately evaluate students.
- Related Services: While in-person therapies such as physical or occupational therapy, or tactile sign language education services are likely unfeasible at this time, no flexibility has been granted regarding the requirement to address a student’s individualized area of need, even regarding hands-on therapies.
- Behavior Intervention Plans: ISBE’s guidance states that educators should implement BIPs during remote learning by adapting the method of learning on an individualized and as-needed basis.
- Early Intervention and Early Childhood Transition: Federal and state requirements regarding transition from an early intervention plan remain in effect during remote learning. Accordingly, a student in an early intervention program must have either an IEP or IFSP in effect by his or her third birthday.
- Private Special Education Schools: Resident districts are still responsible for students currently placed in private special education schools, including placement and travel for these students should a residential placement close during the COVID-19 pandemic. School districts should work with private special education schools to determine appropriate remote learning methods.
- Due Process: During remote learning, no flexibility has been granted regarding federal and State timelines concerning due process and mediation, though parties can request or agree to extensions. The timeline for State complaint resolution may be extended by agreement or if exceptional circumstances related to COVID-19 exist with respect to a particular complaint, such as staff unavailability or extended absence.
While the FAQ provides minimal direction with respect to how to adapt these requirements to the current circumstances, districts, cooperatives, and professional associations have been working diligently and creatively to problem-solve and share ideas.
In its FAQ, ISBE also provided guidance regarding several areas where schools and school districts should work to offer services remotely, such as utilizing telephone or video conference capabilities to conduct IEP meetings. Additionally, ISBE stressed that students are still required to make measurable progress on their IEP goals, meaning schools should consider providing services and related services through teletherapy and tele-intervention practices. This also includes addressing accommodations and social and emotional learning goals during remote learning, as well as utilizing alternative activities to address transition goals in place of in-person opportunities.
As always, your Franczek attorneys are available to answer any questions and consult with you, particularly regarding the following areas ISBE suggests consultation with a board attorney:
- Reviewing special education timelines related to business days and calendar days to comply with State and federal law;
- Amending IEPs to address remote learning or the provision of teletherapy or tele-intervention;
- Responding to parents who request in-person meetings;
- Concerns regarding inability to implement systems of support or interventions;
- Completing evaluations that were not completed prior to the suspension of in-person instruction;
- Developing initial IEPs;
- Providing services as stated in a student’s IEP;
- Providing in-person, hands-on therapies to comply with the requirement to provide FAPE;
- Proving nursing care to students;
- Meeting students’ social and emotional needs;
- Convening and conducting necessary Manifestation Determination Reviews; and
- Determining whether compensatory services may be needed when school resumes operation.
We will continue to review any additional State and federal guidance that is issued as this unprecedented situation continues to unfold. In the meantime, your Franczek attorneys are here to answer any questions you have relating to the above or general special education concerns during remote learning.