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Covid Guidances from the U.S. Ed. Department - a summary

Everyone wants to know what their public schools are ‘allowed’ and not allowed to do to accommodate students right now. The U.S. Education Department Office of Civil Rights (OCR) oversees Section 504 of the Rehabilitation Act of 1973, which requires equal access to students with disabilities. The U.S. Education Department Office of Special Education and Rehabilitative Services (OSERS) oversees the Individuals with Disabilities in Education Act (IDEA), which is the law under which a child can get an Individualized Education Program (IEP). Two different laws, two different departments – but students with IEPs are automatically protected by Section 504 and the reverse is not necessarily true. Both departments have issued ‘question and answer’ guidances addressing the obligations of public schools during the Covid-19 reopening period on September 28, 2020.

This is IMPORTANT to note: both guidances acknowledge that states and local districts have broad latitude and that the guidances do not have the force of law. Here is a summary of these guidances:

From OCR:

Students with disabilities don’t come first when it comes to reopening:

-Prioritizing in-person reopening for students with disabilities is not required. It depends on the individualized determination of the child’s “…educational and disability-related needs, and whether providing in-person instruction or services would be a reasonable modification to a reopening policy that is necessary to provide a student a FAPE or otherwise to avoid discrimination on the basis of disability.”

Even if school is remote or a child must stay home, special education and related services must be provided:

- Districts must provide special education and related services for students who have Individualized Education Programs (IEPs) developed through the IDEA or are receiving services under Section 504 and who are required or advised to stay home by public health authorities or school officials for an extended period of time because of COVID-19.

Face mask requirements for children who can’t tolerate them– it depends on the circumstances:

- Districts must “…make reasonable modifications in their policies, practices, or procedures—including any addressing the use of face coverings—when those modifications can be made consistent with the health, safety, and well-being of all students and staff, and are necessary to avoid discrimination on the basis of disability.”

Limiting or reducing services for students with disabilities, without regard to their individualized needs violates Section 504.

-District’s can’t have district-wide, broad blanket policies limiting services of students with disabilities. That violates Section 504.

From OSERS:

No matter the instructional delivery approach chosen by a State or local educational authority, individualized education program (IEP) Teams remain responsible for ensuring that a free appropriate public education (FAPE) is provided to all children with disabilities.

- Even if instruction is totally remote.

- IEPs still had to be in effect by the start of the school year

- all children with disabilities must continue to receive FAPE, so the team should identify how special education and related services will be delivered in the IEP

- -certain required team members may be excused from attending IEP team meetings only if the parent and District agree IN WRITING.

- Amendments to IEPs can be made without a meeting (get that in writing), but this doesn’t substitute for an annual review

o The parent has to be provided with a copy of the revised IEP and ‘prior written notice.’

What if my child didn’t get summer services?

- Districts should consider providing ESY services to the child during the normal school year, during school breaks or vacations where appropriate to the child’s needs

States and Districts can be flexible in making exceptions for meeting the 60 day deadline to conduct an initial evaluation after receipt of consent

IEPs still have to be developed within 30 days from an eligibility determination

What about reevaluations?

- investigate all appropriate assessment instruments and tools to determine if some can be administered or completed remotely

- in-person observations can be done remotely

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