Coronavirus and Schools: Gifted and 504 Obligations During the Statewide Closure of Schools
CORONAVIRUS UPDATE
Several members of the pool have inquired as to whether our pandemic-related substantive and procedural advice applies equally to students who qualify for Section 504 Service Agreements and GIEPs. Substantively, the answer is largely yes.
Though SB 751 is silent when it comes to both Section 504 and Chapter 16, it is a safe assumption that, at the very least, the expectation of “good faith” articulated therein would apply to both of these protected classes of students. A brief rundown of our advice as it pertains to both sets of children follows.
Gifted (Chapter 16) Obligations:
- Services During the Closure: As we’ve advised in previous IDEA-related opinions, if an LEA rolls out mandatory planned instruction targeting new skills or content, it would be expected to make a good faith effort at offering gifted education services that are reasonably designed to meet each eligible child’s gifted needs. SB 751 contains no “written notice” mandate for GIEPs, but we nevertheless recommend the following simple communication the parents of children with GIEPs:
We are currently closed for all students in accordance with Governor Wolf’s school closure order. Your child currently has a GIEP, which will be implemented to the maximum extent necessary and possible given the limitations of a virtual platform. Your child’s case manager will be reaching out to you to discuss the specifics of implementation and any questions or concerns you may have, and we encourage you to communicate with your case manager should you have any questions at all.
- Evaluations and Reevaluations During the Closure: As Chapter 16 does not contain a triennial reevaluation requirement, the only evaluations/reevaluations that should be at issue during the closure are those for which you had already received parental consent prior to the shutdown. In such cases, move forward with completing the report in the same manner as we have previously advised for special education matters. Summarize the records and other information reviewed and any testing that was completed before the closure. 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) gifted status; (b) present levels; or (c) gifted needs. In the conclusions section, make whatever recommendations you are able to make on eligibility (if at issue), present levels, and gifted needs (goals and specially-designed instruction). If the evaluation is an initial and the team was unable to conclusively determine whether the student qualified under Chapter 16, issue a NORA so notifying the parents. In the NORA, indicate that “Upon resumption of school following the current closure, a new gifted evaluation will be proposed and, if parental consent is provided, will be completed to conclusively determine the issue of gifted eligibility.”
If there is a request for an evaluation or reevaluation for which you had not received parental consent before the closure, we continue to recommend that you avoid inviting more timeline compliance issues by issuing new permissions at this time. Instead, send the following to the parents in this situation:
We agree that a gifted evaluation of your child, ___________, is needed. The current closure of schools that Governor Wolf has ordered, however, prevent the completion of evaluation activities at this time. Immediately upon the resumption of school, we will be issuing a Permission to Evaluate form to you. Receipt of this form back from you indicating your consent will enable us to proceed with the evaluation at that time. Thank you for your patience in trying times.
- GIEP Meetings During the Closure: Like the IDEA, Chapter 16 also carries an annual meeting requirement and a requirement to meet within 30 days of the initial evaluation. In these two situations, we again recommend either virtual meetings or conference call meetings or some combination thereof. Once a final GIEP is developed, issue it with a NORA as you usually would. The requirement that GIEPs be implemented within 10 days of their development is a school day requirement, so we are not concerned about your inability to begin services under the new GIEP until after the closure.
Section 504 (Chapter 15) Obligations:
- Services During the Closure: As we have advised previously, all virtual instruction – even that of the non-mandatory, “enrichment” brand – must be accessible to students with disabilities. To the extent that a 504 Service Agreement contains student-specific adaptations and/or curricular modifications, LEAs must make a good faith effort toward ensuring those adaptations/modifications are delivered to the extent that they are (a) necessary in a virtual setting; and/or (b) feasible in that setting. As with our IDEA advice, expecting perfect, to-the-letter implementation of 504 plans under these circumstances is simply not going to be reasonable in many cases. Again, though SB 751 contains no “written notice” mandate for 504s, we recommend the following simple communication the parents of children with 504 Service Agreements:
We are currently closed for all students in accordance with Governor Wolf’s school closure order. Your child currently has a Section 504 Service Agreement, which will be implemented to the maximum extent necessary and possible given the limitations of a virtual platform. Your child’s case manager will be reaching out to you to discuss any questions or concerns you may have, and we encourage you to communicate with your case manager should you have any questions at all.
- Evaluations and Reevaluations During the Closure: Neither Section 504 itself nor Chapter 15 contain a triennial reevaluation requirement for 504 students, so again, the only evaluations/reevaluations that should be at issue during the closure are those for which you had already received parental consent prior to the shutdown. For completing such reports, we offer the same advice as stated above and previously with regard to GIEPs and IEPs. Many 504 evaluations and reevaluations – especially those for purely medical conditions upon which the District is largely relying on physician documentation – may be able to be appropriately completed without assessment of the child. In those rare cases where a 504-only report involving assessment of the child is pending, you will run into the same testing roadblocks about which we have warned in previous opinions.
If there is a request for a 504 evaluation or reevaluation for which you had not received parental consent before the closure, our advice remains the same as with GIEPs and IEPs. Send the following to the parents:
We agree that a 504 evaluation of your child, ___________, is needed. The current closure of schools that Governor Wolf has ordered, however, prevent the completion of evaluation activities at this time. Immediately upon the resumption of school, we will be issuing a Permission to Evaluate form to you. Receipt of this form back from you indicating your consent will enable us to proceed with the evaluation at that time. Thank you for your patience in trying times.
- 504 Team Meetings During the Closure: Unlike the IDEA and Chapter 16, Section 504 does not mandate an annual review of Service Agreements. LEAs should not initiate such meetings during the shutdown. In cases where an initial evaluation (whether conducted under a “rule out” IDEA basis or strictly under Section 504) yields a recommendation of eligibility for a Service Agreement, we recommend that such “initial” 504 meetings be convened remotely within a reasonable time.