COVID Q & A for Serving Students With Disabilities During School Closures

Special Education Guidance

UPDATED: April 17, 2020

These Q&A's provide recommendations based on the new guidance, below, as well as previous State and federal guidance discussed in our Special Education Guidance on OCR, ELL, and Distance Learning published on March 19, 2020. We will be providing updated Q&A's as new guidance is issued.

New guidance:

Question 1: What special education and related services are required for students with disabilities during the COVID-19 school closures?

Answer: School districts should develop a plan to provide high-quality educational opportunities to all students during the COVID-19 school closures. When designing and delivering those opportunities, district teams must keep two considerations in mind for students with disabilities. First, how will FAPE be provided to the extent feasible and consistent with the need to protect the health and safety of students and staff? Second, what modifications or accommodations, including those in students' IEPs or Section 504 plans, should be implemented to provide access to the educational opportunities being provided to all students?

Although CDE's March 20 guidance notes that there is no "one size fits all" approach for serving students with disabilities during this time, the services and supports to be provided should, as much as possible, reflect those that have been "determined through the IEP process" to be appropriate. Although guidance suggests that certain in-person IEP services might be provided, including classroom-based instruction to small groups of students, we expect that providing services to students in person, whether at a school site or in a student's home, is neither feasible nor safe at this time.

In the event a school district does not provide any services or instruction for a period of time, CDE nonetheless states that there may be “exceptional situations” where a district might have to provide support and services to students “with extensive support needs in order to maintain their mental/physical health and safety,” even if such services are not available to all students with disabilities, if the school district can do so in compliance with federal, state, and local health directives.

Question 2: Should school districts continue implementing a student's current IEP or amend a student's IEP to reflect the services to be provided during the COVID-19 school closures?

Answer: CDE states that “if the LEA can continue providing special education and related service as outlined in the IEP, or an agreed upon amendment to the existing IEP, through a distance learning model, they should do so.” We can foresee some, but few, scenarios in which a district might be able to continue to fully provide FAPE to a student as identified in the student's IEP. One such example might be a student who is receiving 30 minutes per week of speech (articulation) therapy in his or her current IEP. The district may be able to continue to provide that service—or it may develop an amendment to provide 20 minutes per week of articulation services, which will still provide the student with a FAPE. Development of an amendment will require parent involvement, and implementation of the amendment requires parent consent.

It is far more likely, however, that districts will provide services to students with disabilities through development of alternative service delivery options. In creating those options, both the state and federal departments of education acknowledge that the priority at this time is complying with local health officials' directives and keeping students and staff safe and healthy. CDE acknowledges that the COVID-19 threat is an “unprecedented situation” and that “exceptional circumstances may affect how a particular service is provided under a student’s IEP.” USDOE further recognizes that “the determination of how FAPE is to be provided may need to be different in this time of unprecedented national emergency.” Regardless, it is evident that both CDE and USDOE contemplate school districts complying with IDEA during this COVID-19 school closure period “to the extent feasible.”

With the above-referenced guidance as context, we recommend that districts create individualized service delivery plans that reflect the types of services and supports identified as necessary in the student's IEP to the extent possible, although frequency, duration, location, and methodology of SAI and related services will be different. We further recommend providing notice to parents of the instruction and services that the district anticipates providing to each student with as much specificity as possible. However, we do not advise memorializing such services (which will approximate but not constitute what the IEP team previously has determined to be FAPE) in an IEP amendment.

Notably, CDE and USDOE have not directly addressed the question of what a school district should do when it cannot feasibly implement special education and related services because school sites are closed and staff are at home in compliance with a state-wide shelter-in-place order. Generally, CDE expects that districts will provide educational opportunities to both its general student population and to students with disabilities, as funding is continuing to flow to school districts for that purpose. The USDOE continues to take the position that a district's obligation to serve students with disabilities only arises if it is providing services to general education students during school closures—but it underscores in its most recent communications that concerns about how to deliver services to students with disabilities should not prompt districts to decide to deliver no instruction to any students.

When schools reopen, districts should: (1) immediately implement the student's IEP in place prior to the COVID-19 school closures, even if an alternative plan or service delivery options were implemented during the closure; and (2) consider whether any adjustments need to be made to the student's IEP as a result of the school closure to ensure that the student continues to receive the educational benefit that the IEP was designed to provide. CDE and USDOE also advise that IEP teams should consider whether compensatory services are needed based on whether or not the student continued making progress in the general education curriculum, or alternative course of study specified in the IEP, or toward meeting their IEP goals and/or if regression occurred during the period of school closure. Such considerations will be particularly important, where a school district was unable to provide any educational opportunities or specialized services to a particular student.

Questions 3: Are school districts required to convene IEP team meetings during the period of school closures due to COVID-19?

Answer: Yes. CDE states that federal timelines remain in force, and that school districts should do their best to adhere to them to the maximum extent possible by using distance technology. However, the CDE also acknowledges the “complex, unprecedented challenges” school districts face in dealing with the repercussions from the COVID-19 crisis. While CDE does not have the authority to waive federal timelines, it has indicated it will adopt a “reasonable approach” to compliance monitoring by considering the days of school site closure as days between the student's regular school session. While this relaxed approach by CDE may provide relief to school districts for purposes of state compliance monitoring, it does not waive or toll (pause) the federal timelines. Consequently, to ensure adherence to the requirements of the IDEA, school districts should continue to convene IEP team meetings, including initial, annual, triennial, and parent-requested IEP team meetings, to the maximum extent possible during the period of school closures. See Question 4 below for a discussion of situations where an assessment has not been started or completed.

All IEP team meetings should be held in accordance with public health recommendations governing social distancing. During the current statewide shelter-in-place order, we recommend that school districts use distance technology such as telephone and video conference options. Districts should ensure that the technology needed to conduct IEP team meetings remotely is in good working order, and that to the greatest extent possible, all team members, including parents, are provided with copies of necessary documents in advance of the meeting. Further, all statutorily required team members should attend and participate in all IEP team meetings, unless excused. Finally, remember that districts are still be required to provide interpreters, when necessary, to ensure parental participation.

Question 4: Are school districts required to conduct assessments during school closures?

Answer: Yes, with some exceptions. CDE states that federal timelines remain in force during school closures, so school districts should do their best to adhere to them, to the maximum extent possible, by using distance technology to meet obligations. However, according to OCR's March 16, 2020 Fact Sheet, any assessments that require face-to-face assessment or observation should be delayed during COVID-19 school closures. While OCR does not have the authority to waive federal timelines, we believe school districts should prioritize conducting legally defensible assessments over strict compliance with timelines. If an assessor has already completed all necessary direct testing and observation(s), the assessor should complete the assessment during the school closures. If an assessment cannot be completed during school closures because it requires in-person testing and/or observation(s), the assessor may still wish to use the period of school closures to complete any portions of the assessment that may be done remotely. For reevaluations, school district may also consider conducting a review of existing data and communicate with parents to obtain input on whether additional assessments are determined to be needed. If the team believes the existing data supports continuing eligibility, it can move forward and complete the reevaluation using the existing data. These steps will alleviate the inevitable backlog and avoid rushed assessments once schools reopen.

Recall that SB 117 tolls (pauses) the timeline for a school district to respond to a request for assessment during the period of school closures due to COVID-19. This provision applies even if a district is providing distance learning and/or independent study opportunities during the closures. The Legislature, however, encourages districts to respond as expeditiously as possible to assessment requests received during the period of time a school is closed due to COVID-19. We recommend that districts develop a method of tracking these referrals so when school sites reopen, timelines can be met.

Question 5:How should school districts serve students who were placed in nonpublic schools (“NPSs”) or residential treatment centers (“RTCs”) during the COVID-19 school closures?

Answer: CDE encourages school districts to work collaboratively with NPSs to ensure continuity of services, which can include moving to virtual platforms for service delivery, to the extent feasible and appropriate. CDE also encourages school districts to continue to use NPSs during school closures so that NPSs can continue to receive payment according to the IEP and the master contract/individual service contract. Although not specifically addressed in any guidance, it appears that if a student is placed in an RTC, and if that RTC has not closed, the student should remain in his or her RTC with the student’s IEP continuing to be implemented. In the event of a closure of the RTC and/or the NPS attached to the RTC, the district should work collaboratively with the facility to ensure continuity of services, similar to CDE’s advice for NPSs, which can include moving to virtual platforms for service delivery to the extent feasible and appropriate.

UPDATED April 17, 2020
Question 6: Should school districts continue to pay NPSs and nonpublic agencies (“NPAs”)?

Answer: UPDATED April 17, 2020 Yes, if the NPS/NPA continues to provide services in accordance with the master contract/individual service agreement. CDE encourages school districts to continue using NPS/NPA services during the period of school closures so that the NPS/NPA may continue to receive payment. Further, per the federal CARES Act, school districts "shall" continue to pay contractors "to the greatest extent practicable." Continuity of payment is consistent with the intent set forth in SB 117 and the federal CARES Act that a district’s contractors continue to be paid during the period of school closure. CDE recommends reviewing existing master contracts with each NPS/NPA and exploring payment options given the likelihood of the impact on the NPS/NPA due to student absences.

ADDED April 17, 2020
Question 7: What are a school district’s obligations with respect to children transitioning from Part C to Part B
Answer: Federal law requires school districts to make FAPE available to each eligible child no later than the child’s third birthday, either through an IEP or an IFSP.  Currently, there is no federal waiver of this requirement, a point which CDE raised in its April 9, 2020 guidance.  CDE suggested that school districts convene virtual IEP team meetings to develop such IEPs or IFSPs.  However, CDE was silent about how school districts might actually develop an IEP or IFSP given that the determination of Part B eligibility hinges on the completion of an initial assessment.  As a reminder, OCR has opined that assessments requiring face-to-face assessment or observation should be delayed during the COVID-19 school closures.  An initial assessment of a child transitioning from Part C to Part B often includes face-to-face play-based assessment and observation as necessary components. Under these circumstances, we make the following recommendations for children transitioning from Part C to Part B during the period of COVID-19 school closures for whom an initial assessment cannot be completed. 

We recommend providing parents with an Assessment Plan (and a copy of Procedural Safeguards) for the initial assessment to be completed once school reopens.  We also suggest offering a temporary diagnostic placement to begin upon the child’s third birthday and to continue through the period of assessment only. The diagnostic placement may be based on the child’s IFSP and reports, input from parents, and input from the child’s infant-toddler service providers (with parents’ consent).  School districts may wish to describe the details of the diagnostic placement in a cover letter to parents. The diagnostic placement may be different during the period of school closures than it will be when schools reopen, depending on what is feasible given the shelter in place orders and social distancing mandates and consistent with the school district’s overarching distance learning plan. Although the school district will not be able to make an eligibility determination and develop an IEP, if eligible, by the child’s third birthday, we nevertheless believe it is advisable to provide some services to students transitioning from Part C to Part B during this important developmental period and pending the outcome of the initial assessment and eligibility determination.  We recommend using the period of school closures to complete any portions of the assessment that do not require face-to-face assessment or observation. 

ADDED April 17, 2020
Question 8: Should school districts provide in-person or in home services to students with disabilities?

Answer: No, unless exceptional circumstances exist. CDE states the primary consideration for school districts in distance learning is the health and safety of students, teachers, and service providers. This requires compliance with federal, state, and local health officials' stay home and shelter in place orders and guidance related to physical distancing. CDE does not mandate in-person supports or services, but rather states that school districts may need to provide some such services "in order to maintain students' mental/physical health and safety in distance learning" in "some exceptional situations." While CDE does not define when "exceptional circumstances" may exist to warrant services in-person or in the home, this decision should be made on an individualized basis.  School districts should consider social distancing mandates and the risks to the health and safety of the student, student's family members, teachers, service providers, and the community in delivering in-person or in home services, along with alternative distance learning options to address the student's mental/physical health and safety in distance learning to determine whether exceptional circumstances exist. If services are provided in-person or in the home, heightened cleaning and distancing requirements should be employed, such as remaining at least 6 feet apart, wearing a mask, washing hands before and after or using hand sanitizer, and cleaning and disinfecting all surfaces touched before and after such services.

ADDED April 17, 2020
Question 9: How should parent consent be obtained to an IEP?

Answer: CDE provides flexibility in obtaining written consent. Verbal consent is not sufficient. In addition to a "wet" signature, electronic or digital signatures may be used. CDE identified options such as HelloSign, DocuSign, Adobe Sign, and scanned copies or photographs of signed signature pages. According to Government Code section 16.5, the signature must be unique to the person, verifiable, under the person's sole control, and linked such that if the data changed, the digital signature is invalidated.

Below, please find links to the relevant guidance and orders analyzed herein:

  1. CA Executive Order N-25-20 March 4, 2020
  2. U.S. Department of Education Q&A on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak March 12, 2020
  3. CA Executive Order N-26-20 March 13, 2020
  4. OCR Fact Sheet: Addressing the Risk of COVID-19 in Schools While Protecting the Civil Rights of Students March 16, 2020
  5. SB 117 (COVID-related school closure, timelines, ADA, state testing, cleaning of facilities) March 17, 2020
  6. CDE Distance Learning Guidance March 17, 2020
  7. Executive Order N-33-20 (Shelter in Place for all of CA) March 19, 2020
  8. CDE Special Education Guidance for COVID-19 March 20, 2020
  9. OCR/OSERS Supplemental Fact Sheet: Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities March 21, 2020
  10. CARES Act March 27, 2020
  11. CDE Special Education Guidance for COVID-19 Updated April 9, 2020
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