Coronavirus and Schools: Addressing a Concern with our COVID-19 Advice
CORONAVIRUS UPDATE
There are some concerns with regard to students involved in the initial ER process where the assessments are not completed. If we interpreted your previous opinion properly, we would be writing “non-exceptional” reports for many of those students (due to not having enough information). In doing so, we very well could be doing a disservice to those students through no fault of their own and potentially extending their eventual due dates for the completion of the recommended second report. Would it be more advantageous to seek a waiver of some sort from families whose children’s annual IEP, ER, or RR deadlines fall during the closure period? We use waivers for lots of other purposes. Why not this?
We are forced to do a disservice to the students in question either way. Waiving IEP revisions, or the completion of ERs or RRs will not cause updated services or a complete evaluation or reevaluation report to materialize any faster. In the case of annual IEP revisions, waiving the revision until school resumes might actually delay the implementation of revised programming. Completing the initial evaluation process with a non-identification, but with a commitment to seek permission to complete needed testing and assessment as soon as school resumes, at least enables us to meet timeline expectations without putting the child in any different a position than he or she would be if his or her parents waived timelines compliance.
The real reason waiver is not a viable option, however, is that the enforceability of any waiver necessarily hinges on the waiving party (in this case, the parent) receiving something of value in exchange for the waiver. In contract law, this “something of value” is called “consideration.” A contractual commitment can only be enforced against a party if that party has received something of value for making that commitment. If I agree to pay you $10 in exchange for your dog-watching services, and you actually walk my dog (provide valuable consideration), I am bound to pay you $10. If, on the other hand, I simply agree to pay you $10 for nothing in exchange, I can welch on that deal without concern for a lawsuit. If we ask the parent to waive an annual revision or the timely completion of an ER or RR, what is the parent, or his or her child, receiving in exchange for that? In the case of an ER or RR, you might reply “a more thorough evaluation,” but the parent and the child were already entitled to that.
The IDEA does allow parents and LEAs to waive cyclical three-year reevaluations. LEAs would propose such a waiver when absolutely no reason exists to examine the student’s disability status, present levels, or educational needs after three years. “Absolutely no reason” does not mean “absolutely too difficult to pull off during a COVID-19 closure.”