On September, 28, 2020, The Office of Special Education and Rehabilitative Services’ Office of Special Education Programs (OSEP) and the United State Department of Education Office for Civil Rights (OCR) each released Q & A documents addressing the implementation of special education services and accommodations under Section 504 during the ongoing COVID-19 environment.
These documents do not have legally binding effect, but are intended to clarify information for the public and provide guidance to educational entities.
Acknowledging Extraordinary Circumstances and Obligation to Prioritize Among Competing Needs
Both federal agencies acknowledged the challenges faced by students, families, teachers and schools during this time. Community and student needs are continually changing. Nonetheless, schools must provide supports and services to students so that they receive a free appropriate public education as required under IDEA as well as Section 504. Unless renewed governmental directives to close schools are issued, schools must determine the most effective mode of instruction for each student after weighing community and student-specific health concerns. The guidance documents highlight the need to prioritize the health and safety of students, families and the school community. Further, communication and cooperation between parents and school staff is critical to ensure students receive necessary supports and services.
Pennsylvania school administrators are familiar with the suggested instructional modalities that should be considered, including in-person, remote and hybrid programming. Decisions regarding instructional modalities and resulting health and safety plans were made after reviewing many factors, including the health and safety of the public and the social and academic benefits of in-person education.
Whatever modality is used, IEP and 504 Teams must identify how special education and related services will be provided, as well as necessary accommodations. OSEP suggested including, or at least considering, a variety of methods and settings to not only ensure a child is receiving FAPE, but also to keep the safety and health of everyone involved as the top priority. For some students, the IEP or 504 Team may determine it is necessary to prioritize a return to in-person learning. OCR’s guidance echoed the emphasis on in-person instruction, but noted that prioritizing this on the basis of race, color or national origin would violate Title VI of the Civil Rights Act of 1964.
Because government-mandated school closures have been lifted, schools must now move forward with evaluations and re-evaluations consistent with statutory timeframes. The IDEA provides limited exceptions to the requirement to complete evaluations within 60 days. OSEP stated that states have the authority to establish exceptions to those timeframes through state regulations and policies.
The time to decide whether students require compensatory services resulting from reduced or lost access to instructional services has arrived. These compensatory services must be discussed and awarded on an individual basis. OSEP emphasized that COVID compensatory services are distinct from traditional extended school year services. They can be provided during school recess, during an extended school day, or in addition to ESY services.
Bottom Line for Schools
Schools must make every effort to provide children with the special education supports and services appropriate for their individual needs. As available modes of instruction change in response to student and community health parameters, an IEP may need to be updated to reflect those changes. However, as noted in previous guidance, safeguarding health and safety is the first priority.
If you have a question, please contact your legal counsel or one of the Special Education attorneys at KingSpry.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. This article is meant to be informational and does not constitute legal advice.
