Coronavirus and Schools: Evaluation, Reevaluations, and IEP Team Meetings
CORONAVIRUS UPDATE
We have received numerous inquiries on whether schools will be required to meet IEP and evaluation-related deadlines during the governor-imposed school closing.
Last week, we shared with you some very unhelpful guidance that the Office of Special Education Programs (OSEP) within the United States Department of Education (USDE) offered in response to a recent inquiry on this subject. OSEP very unhelpfully simply forwarded guidance it had drafted in the wake of Superstorm Sandy in 2012. As you will recall, thousands of schools in New York and New Jersey were forced to close for extended periods following that disaster. The substance of OSEP’s response, then and now, is that the federal government is unable to waive or otherwise excuse the mandates of federal law under either the IDEA or Section 504. OSEP did suggest that each state has some discretion over the 60-day evaluation and reevaluation timelines, but Pennsylvania has yet to reconsider whether its 60-day timelines will cease running during the current shutdown. With this in mind, we recommend the following, with one important caveat. That caveat: it will be very difficult to turn on a dime and change practices immediately over the next week or even two. As it is very likely the closure of schools might continue beyond the current two-week shutdown ( they already have in Ohio), we offer this advice understanding that you might require time to operationalize it. That means some timelines will be missed. Let it be so. We believe that it is very unlikely the department will be citing districts for compliance violations and that hearing officers will find delays in evaluations and IEP development alone to support a denial-of-FAPE finding.
Evaluations and Reevaluations
The only evaluations and reevaluations that are of concern are those for which the LEA has received parent consent and those for which the three- or two-year deadlines are pending. Our advice is based on the assumption that no direct testing and assessments will occur during closure.
For those evaluations and reevaluations for which you have received permission, complete an evaluation or revaluation report (ER or RR) summarizing the records and other information reviewed and any testing that was completed before the break. If the team was unable to complete all of the testing or any of the testing for which consent was received, acknowledge that fact in the report and explain how, if at all, the absence of the testing and assessments that you were unable to complete affects the ability of the team to make conclusive determinations of (a) disability status (especially for initial evaluations and reevaluations that were exploring the possibility of dismissal or adding a new area of disability); (b) present levels; or (c) educational needs. In the conclusions section, make whatever recommendations you are able to make on eligibility (if at issue), present levels, and educational needs (goals and specially-designed instruction). If the evaluation is an initial and the team was unable to conclusively determine whether the student has a disability or a need for special education, issue a NOREP so notifying the parents. In the “other considerations” section of that NOREP, indicated that, “Upon resumption of school following the current closure, a new evaluation will be proposed and, if parent consent is provided, will be completed to conclusively determine the issue of special education eligibility.”
For cyclical reevaluations that will be due during the period of the shut-down, or that will need to be underway during that period, conduct a virtual review of existing information. If that review results in a recommendation to conduct testing and assessments, acknowledge that fact in the RR, and proceed as recommended above. When the break is concluded, issue a PTRE to complete the testing and assessments you were unable to conduct during the break. Issue the RR. No NOREP will be necessary until you have completed the IEP review based thereon (see below).
IEP Development and Revisions
The IEP team meetings that are of immediate concern are those following an initial evaluation that resulted in a determination of eligibility, which must occur within 30 days, and those needed to conduct the mandated annual review. The 30-day requirement does not apply to reevaluations, although we have recommended that good practice would require that reevaluations not grow too stale. These are not times for sweating “good practice.”
For the two circumstances requiring IEP meetings—those following initial evaluations and those needed for annual revision—the “meeting-less” review is not an option. We recommend either virtual meetings or conference call meetings or some combination thereof. The IDEA specifically allows that parents can participate by “individual phone conference”—presumably with one team member—or by circulation of an IEP draft with the opportunity to make comments, ask questions, and propose revisions to appropriate team members prior to finalization of the document. Once a final IEP is developed, of course, issue it with a NOREP as you usually would. The requirement that IEPs be implemented within 14 days of their development is a school day requirement, so you need not worry about your inability to begin services under the new IEP until after the break.
Personnel
The foregoing advice presumes, of course, that the professional staff needed to write ERs and RRs, serve on IEP teams, and write and revise IEPs will be working—even it remotely. And they should be. Section 1153 of the Pennsylvania School Code requires that school districts continue paying their teaching staff during disease- and weather-imposed closings, so we should have every expectation that those staff will continue working to the extent that their duties can be performed remotely. We strongly recommend, however, that you notify your union leadership of your expectations that their membership will perform the duties outlined above. Some bargaining units might construe requiring work from the home—particularly for teachers saddled with child care duties—to constitute a material change in work conditions. Schools can unilaterally impose such changes, but only after bargaining to impasse on them. We can only hope that our teachers will be more public-spirited, but reaching out to union leadership will be important to securing cooperation.
Note: There is a very real possibility that the governor or the Pennsylania General Assembly might eventually expect schools to remain open during the summer to make up for the time lost during the current closure. We have no word one way or the other on this issue, but the possibility cannot be ignored. Were that to happen, and if we had in the meantime required our teaching staff to work during the break (as IEP team members and drafters or as ER or RR writers), requiring those staff members to work during the summer would be tantamount to requiring them to work beyond their contract, necessitating compensation for “extra duties” to those staff members willing to accept it.
Pivoting to make all of this virtual process possible will take a little time, as we note above. As long as we are moving in good faith toward developing the capacity to follow the processes we recommend above, we believe you will be in a strong position legally moving forward.