On August 5, 2016, the United States Department of Education issued a Dear Colleague Letter reminding school entities that they are required to provide appropriate special education programing to students under the IDEA, including when those students are in a cyber or virtual program, whether it be a district-operated cyber program or a cyber charter school.
While the guidance does not change the law on this issue, it does indicate a new focus on the part of the Department of Education and possibly Pennsylvania’s Department of Education (PDE), on this issue. Here are the highlights of the guidance included in the Dear Colleague Letter.
Concerns Raised By The Guidance
First, the Department of Education reminds states and LEA’s that they have an obligation under Section 504 and the IDEA to meet the needs of students with disabilities when those students are in a cyber program. The letter reminds states that they have an obligation, under their general supervisory role under the IDEA, to ensure that cyber programs comply with the IDEA’s requirements.
While not yet clear, it is possible that PDE will take that direction as an indication to give more scrutiny to cyber charter schools and cyber programs operated by school districts. As a result, it would be well advised to review practices and procedures of your cyber program to ensure compliance with the IDEA’s mandates.
Second, the guidance pays particular attention to child find obligations noting that while “child find for children attending virtual schools may present unique challenges,” cyber programs still have the same child find obligations as any other school or program. Of note, the guidance indicates “reliance on referrals by parents should not be the primary vehicle for meeting IDEA’s child find obligations.” As a result, cyber programs should review their child find procedures and process to ensure it is as comprehensive as possible to locate all potential students.
Finally, the guidance also notes that cyber programs have the same FAPE obligations as brick and mortar schools. This means ensuring that necessary evaluations are performed, IEP’s are implemented as written, and that students are placed in the least restrictive environment. For school entities that contract with cyber providers to provide this type of program, this means it is essential that you ensure that your provider has the ability to, and in fact, will implement with fidelity, the IEP’s drafted by the LEA for students in their program. On the placement option, the guidance notes that cyber programs must have access to and be able to offer a full continuum of placement options, but notes that this may be done through placement with another LEA.
Bottom Line for Schools
Given the increase in the number of student attending cyber programs, the Department of Education is focusing more attention on ensuring that the special education needs of students in such programs are met. As a result, it is critical that school entities that operate such programs review their procedures and practices to ensure that the IDEA’s mandates are meet in such programs, including in the areas of child find, evaluations, the provision of FAPE and placement options.
If you should have any questions about this new guidance from the Department of Education, please contact your legal counsel or an attorney at KingSpry.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. It is meant to be informational and does not constitute legal advice. John E. Freund, III, is our editor.
