COVID: Special Education Considerations for the 2020-21 School Year

Guidance on SB 98

July 24, 2020

Below is current guidance for school districts to comply with SB 98 and navigate related special education issues most school districts will be facing in the 2020-21 school year. This guidance is general in nature and may need to be adapted for your school district's specific situation.

Distance Learning
For school districts starting the year in Distance Learning based on Governor Newsom's July 17, 2020 announcement and California Department of Public Health's (CDPH) July 17, 2020 Framework for K-12 Schools and COVID-19 Industry Guidance: Schools and School-Based Programs, we recommend the following:

  • Communicate with all special education families about your school district's general plan to begin the school year in distance learning.
    • In this communication, advise parents that their child's case manager will be in contact with them to provide an individualized distance learning plan for their child.
    • Please see our NewsFlash for additional information about the new distance learning laws applicable to both general and special education students.
  • Provide each family with an individualized distance learning plan.
    • Distance learning plans for each individual student will provide an explanation of how the student's IEP will be executed in that model of instruction. Because a distance learning instructional model is different than an in-person instructional model there will be obvious variations in how the IEP will be executed.
    • Service minutes should align with the IEP frequency/duration to the greatest extent possible. As a result of SB 98, there is a legislative expectation that school districts develop distance learning instructional models that ensure that IEPs are executed in that instructional model. As such, special education and related services going forward should align to each student's IEP taking into account the clear differences that must be planned for in executing the IEP in that model.
    • We do not advise amending IEPs to reflect distance learning plans. IEPs should continue to reflect the child's FAPE assuming in-person instruction.
    • Provide parents an opportunity to provide input into their child's individualized distance learning plan. This could be at an IEP team meeting, if the parents request one or if there is already an upcoming IEP team meeting scheduled, or it could be accomplished by inviting parents to provide input to the case manager or other service providers. Again, if the discussion occurs at an IEP team meeting, we do not recommend documenting the distance learning plan as part of the child's offer of FAPE. Rather, we recommend documenting the discussion in the notes.
    • These recommendations also apply to school districts providing distance learning to students who are medically fragile or at-risk by in-person instruction or who are self-quarantining.

Addition of Emergency Plans as a Component of the IEP:

  • At all initial IEP team meetings and at all regularly-scheduled IEP team meetings for students with existing IEPs, the IEP team must include a description of the means by which the IEP will be provided under emergency conditions in which instruction or services, or both, cannot be provided at the school or in person for more than 10 school days. This is an additional component added to the IEP moving forward, and although sparked by our current situation, it is not meant to address only this current situation.
  • This requirement is separate and distinct from the specific distance learning plans that are being developed in response to the COVID-19 emergency (described above), as it contemplates a description of the means by which services will be provided under any number of emergency situations.
  • Understanding that IEP teams cannot realistically plan for every type of emergency described in the law, and further understanding that the response to one emergency may be very different than the response to another emergency, the IEP team should document generally how learning will continue when faced with an emergency. The language placed under this section should be aligned to a school district's overall emergency plan, and the IEP team should further engage in an individualized discussion about effective distance learning means for the specific student (i.e., how services have been and may be provided).
  • Don't forget that the description of the means must include not only special education and related services, but also supplementary aids and services, transition services, and extended school year services.
  • Please see our NewsFlash for additional information.

Independent Study/Virtual Programs:
Many school districts are expanding their independent study programs and/or are providing a virtual option to families who know they do not want to return their child to in-person instruction during the 2020-21 school year. Understanding these are attractive option for many families, we provide the following considerations and recommendations:

  • Independent study programs must meet the requirements of Education Code section 51745 et seq.
  • A special education student shall not participate in independent study unless his or her IEP specifically provides for that participation.  (Ed. Code § 51745(c).)
  • If the IEP team determines that independent study is not appropriate for a particular special education student, discuss whether the school district can nonetheless accommodate the family's desire to decline in-person instruction, through a distance learning plan.  Remember, the offer of FAPE should continue to reflect what the IEP team believes is FAPE for that child, even if FAPE is an in-person program and the family is choosing to keep their child at home during the pandemic.  It is equally important that IEP teams not run afoul of the requirement that an IEP team make one clear offer of FAPE, even as we attempt to accommodate families who do not want to send their children back to school.  (Union Sch. Dist. v. Smith (9th Cir. 1994) 15 F.3d 1519, 1526.)
  • If your school district's virtual program is not an independent study program or does not meet another statutory requirement to collect ADA, it needs to meet the requirements of SB 98, including the requirement for daily live interaction with certificated employees and peers.  (Ed. Code § 43503(b)(6).)     

The issue of whether to resume assessments is an increasing topic of discussion and debate as districts are faced with (a) mounting numbers of unfinished assessments; (b) IDEA requirements that have not been waived regarding child find and the assessment process; and (c) the potential for compensatory education claims based on failure to timely identify students with special needs, and/or failure to assess, identify and address areas of need.

With those interests and concerns in mind, we are finding that more districts are considering (or have begun) moving forward with the assessment process for as many students as they can. In light of what is now described as a mandate related to school closure from the Governor and the CDPH on July 17, 2020, the first question is whether in-person assessment is even permissible. We believe there are arguments that it is, since the mandate for closure is related to “instruction” and did not specifically address “assessment.” But there is no specific guidance on this topic from CDE at this time. As your school district considers whether and when to resume assessments, we recommend consideration of the following:

  • Assessments are critical to the IEP process and should not be compromised due to current limitations. If assessors believe that in-person assessments are a necessary part of an assessment, they should take steps to conduct in-person assessments in compliance with all state and local health directives and guidelines.
  • Consult with the local department of public health for directives and guidelines regarding how to conduct in-person assessments. Follow any such directives and guidelines—including guidance that in-person assessment cannot be done safely in your community.
  • If in-person assessments can proceed, consider providing written notice to parents about what the assessment process will entail and what risks there may be. That notice may include an opportunity for parents to affirmatively, in writing, decline to move forward with assessment under the current conditions.
  • Consult with test publishers about recommendations related to administration of standardized assessments, and follow those recommendations if they exist. If, as is likely, some assessments are administered in a way that is non-standard, assessors must be sure to note these deviations, and opinions about the implications of them, in assessment reports.
  • It is imperative for all assessors to find a way to include observation(s) of the student accessing instruction and across environments as part of the assessment. It likely will be virtual instruction/environments and the observation may itself be virtual.
  • Alternatively, if in-person assessments cannot be conducted based on state and local health directives and guidelines, consider the following:
    • Whether virtual assessments are an option, using appropriately designated tools for virtual assessments. We advise checking with state and national organizations for their positions on the use of virtual assessments.
    • Whether a records review pursuant to Education Code section 56381 is sufficient to determine the following: whether the student continues to have a disability; the present levels of performance and educational needs of the student; whether the student continues to need special education and related services; and whether any additions or modifications to the special education and related services are needed to enable the pupil to meet his or her annual goals and to participate, as appropriate, in the general curriculum. Parents must be informed of the determination, the reasons for it, and their right to request an assessment.
    • Whether an assessment would be appropriate under the circumstances that consists of measures other than in-person standardized testing, such as checklists, rating scales, interviews, observations, and a review of records. This should only be considered when in-person standardized measures cannot be completed, and should be carefully weighed against the risks that may result from not conducting a thorough assessment. This approach would require an assessment plan, an explanation of why in-person measures are not being used, and parent consent. The assessor should also explain in the assessment report the implications of the lack of in-person standardized measures and make increased efforts to cross-validate information through a variety of other means.
NOTE: This is a summary only and not legal advice.We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances.
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