March 19, 2020
As school districts throughout the state respond to Governor Abbott’s order to close schools through April 3, we encourage you to consider a school district’s ongoing obligations to students with disabilities. We are aware that many school districts may choose to initiate distance learning alternatives that may continue beyond the required April 3 closures. As always, local, state and national responses to the COVID-19 pandemic continue to evolve and guidance on best practices are subject to change. Following are some considerations and suggestions for your review as you develop plans for students with disabilities.
Providing Educational Services through Distance Learning Alternatives
As you consider distance learning alternatives, school districts should be mindful of the continuing obligation to serve students with disabilities. During a closure, if the district provides alternative methods of instruction to general education students, then the district must also ensure, to the greatest extent possible, each student with a disability is provided the special education and related services identified in the student’s Individualized Education Program (“IEP”). See Questions and Answers on Providing Services to Children With Disabilities During the Coronavirus Disease 2019 Outbreak.
Should the shift to distance learning alter the educational approach, revisions to the student’s IEP may be necessary to address the temporary changes in instruction. As usual, an ARD committee meeting is the best vehicle for revising a student’s IEP. The Individuals with Disabilities Education Act (“IDEA”) already contemplates conducting an ARD meeting via teleconference or videoconference and states: “[The] parent of a child with a disability and a public agency may agree to use alternative means of meeting participation, such as video conferences and conference calls.” 34 CFR 300.328. That said, there may be other avenues to altering student IEPs, such as the IEP amendment process. Depending on the circumstances, a written request for parent consent to amend an IEP to incorporate the use of online instruction during a school closure may be appropriate in lieu of an ARD meeting. We are available to help you navigate the options and develop an effective plan for your district depending upon your individual needs and available resources.
In some cases, it may not be possible to provide all IEP services during a prolonged remote learning program. In such cases, the district may need to consider alternative approaches, including but not limited to providing students with compensatory education awards when regular district operations resume. See Fact Sheet: Addressing the Risk of COVID-19 in Schools While Protecting the Civil Rights of Students. We are available to answer your questions about the appropriate method for determining and implementing compensatory education services.
As always, districts need to ensure equal access to educational programs for students covered under Section 504 or the IDEA. This may include consideration of additional accommodations or other supports to access the online learning platforms. For example, a student may require the use of assistive technology such as speech-to-text to successfully utilize a computer interface. See OCR Short Webinar on Online Education and Website Accessibility.
At this time, the guidance from the Texas Education Agency is that the applicable timeline for completing a Full Individual Initial Evaluation (FIIE) is suspended during the period of time a school district is closed and providing no instructional services. However, if the school district remains closed to on-site instruction, but initiates on-line or other distance learning options, then the evaluation timelines continue.
Based on the current circumstances, we anticipate that many school districts will be initiating distance learning options. With that in mind, special education departments will need to consider options for completing pending evaluations. For completed evaluations, the school district is also expected to convene an ARD meeting within 30 calendar days from completing the evaluation report to consider the results of the evaluation and make determinations about eligibility. 19 Tex. Admin. Code 89.1011.
Here are some options to consider for complying with the district’s obligations related to evaluations:
- If all assessments have been completed, staff can work remotely to finalize the evaluation report and then schedule an ARD meeting by phone or videoconference.
- For evaluations with incomplete assessments, the district may consider options to complete assessments through virtual communications, if possible, without undermining the integrity of evaluation results.
In the event that an evaluation cannot be completed within the applicable timeline, districts should consider providing prior written notice to parents to document the reasons the evaluation cannot be completed on time. For example, explaining that necessary and appropriate assessments for the evaluation require personal interaction with the student. The notice should also confirm that the evaluation will be completed as soon as feasible once personal contact between evaluation staff and the student is allowed. The prior written notice may also be used to reassure parents that, to the extent necessary, the district is prepared to consider compensatory education once regular school operations resume.
This Client Alert was prepared by the Underwood Law Firm for its clients. It is intended to be used for general information only and is not to be considered legal advice.
For legal advice regarding your particular situation, please consult an attorney.