Coronavirus and Schools: OCR weighs in on COVID-19
CORONAVIRUS UPDATE
Can you please weigh in on the attached fact sheet from the United States Office of Education Office of Civil Rights in relation to evaluations?
The guidance from OCR simply mirrors the unhelpful advice we received last week in the OSEP Q&A document. If, OCR tells us, you are offering course work on-line to all students, you will have to ensure that students with disabilities receive a full FAPE, if necessary in accordance with a revised IEP. If, on the other hand, you close school for all students and do not offer on-line course work, you do not have to provide services for students with disabilities. (OCR does not address directly the possibility that schools might offer voluntary, non-curricular “activities” for students and families during COVID-19-related breaks, but we have no doubt that it would require those activities to be accessible to students with disabilities, as we have advised.)
The advice gets murky after this point. Like OSEP, OCR advises that FAPE services should continue for all students with disabilities immediately after the break—no kidding. It also suggests, as did OSEP, that some students with disabilities might be entitled to compensatory services if the cessation of services during the break adversely affected those students’ FAPE. Neither OCR nor OSEP offers any guidance on how the need for compensatory services would be determined, but we have advised that the inquiry would look somewhat like an after-the-fact ESY determination. If the child would have required services during the COVID-19 break to prevent regression, or to ensure progress, or to avoid “disengagement from the learning process,” he or she will be entitled to services post-break that addresses the regression, lack of progress, or disengagement. We will not have to offer compensatory services unilaterally, unless the need for them is obvious post-break, but we can count on parents asking for IEP team meetings to discuss the need.
We interpreted the highlighted language in the attached guidance to be consistent with our previously-offered advice. We agree that face-to-face testing and assessments should not occur. OCR points out, however, that evaluations not requiring face-to-face testing and assessment may continue. This is typically unhelpful language, as it provides parents and their attorneys and advocates with support for arguments that such evaluations must continue, for the sake of the child. We offered advice yesterday in which we recommended a process by which necessary evaluations and reevaluations (those for which you have already received parent permission and those needed to meet three-year deadlines) can be brought to a conclusion without direct testing and assessment, thus complying with state and federal timelines (which OCR does not mention), while recognizing the need to suspend face-to-face activities, which OCR supports.