As schools around the country began educating students in a distance learning setting based on COVID-19 concerns, it became important to know how to address providing education and services to students with disabilities. Shortly after Governor DeWine formally announced students in Ohio would not attend school in person, the U.S. Department of Education issued its first round of guidance on this topic (available here: https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/qa-covid-19-03-12-2020.pdf). Since then, the Ohio Department of Education and the U.S. Department of Education have issued additional guidance at different times; we anticipate that each agency will continue to provide specific direction and information in the coming weeks and months. Below is a summary of the current guidance on educating students with disabilities.

U.S. Department of Education Guidance

The U.S. Department of Education has stated that if a school district provides any “educational opportunities” to the general student population during the time students are not in school, “the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE.” If the district is not providing any educational services to the general student population during this time, then the district is not be required to provide services to students with disabilities during the same period of time. For districts providing educational opportunities, like most Ohio school districts, this is a daunting task - ensuring FAPE for special education services in a distance learning setting. The U.S. Department of Education clarified more recently that ensuring compliance with the IDEA should not prevent any school from offering educational programs through distance instruction. Along with this directive, the U.S. Department of Education stated that it will offer flexibility where possible, and reminded educators that federal disability law allows for flexibility in determining how to meet the individual needs of students with disabilities. Importantly, the U.S. Department of Education also noted that the determination of how FAPE is provided may need to be different in this time of unprecedented national emergency, and educators can take into account the need to protect the health and safety of students and service providers. The U.S. Department of Education ended by encouraging parents, educators, and administrators to collaborate creatively to continue to meet the needs of students with disabilities.

The U.S. Department of Education also provided some guidance (available here: https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/rr/policyguidance/Supple%20Fact%20Sheet%203.21.20%20FINAL.pdf) on meeting procedural requirements under the IDEA during this time period, emphasizing that it will offer flexibility whenever possible. Specifically, the U.S. Department of Education stated that extensions of time may be granted for the following:

State Complaints: even without agreement by the parties, a state may be permitted to extend the 60-day timeline for complaint resolution based on the exceptional circumstance of having a large number of state staff unavailable or absent for an extended period of time.
Due Process Hearings: the parties can mutually agree to extend the 30-day resolution period based on COVID-19 and a hearing officer may grant a specific extension of time for his/her decision at the request of either party.
IEPs: once a child is found eligible for services under the IDEA, the IEP team must still meet and develop an initial IEP within 30 days of the determination of the need for special education and related services. While this timeline did not change, ODE and the U.S. Department of Education have expressly stated that virtual meetings or conference calls can be used to conduct IEP meetings. IEP annual reviews are still required, but, again, parents and the IEP team may agree to conduct the meetings via videoconferencing or conference calls. When making changes to a child’s IEP after the annual IEP meeting, the parent and the school district may agree to not convene an IEP team meeting for the purposes of making those changes and instead develop a written document to amend or modify the child’s current IEP.
Initial ETR: an initial ETR must still be conducted within 60 days of receiving parental consent (yet see below regarding ODE’s guidance that if initial ETRs can be completed without face-to-face components, they should be completed within the 60 day timeline but ETRs requiring face-to-face assessments or observations must be delayed until schools reopen to students).
Triennial ETR: parents and the district may agree that a triennial reevaluation is not necessary. When the reevaluation is necessary, it may be conducted through a review of existing evaluation data and can be conducted without a meeting and without obtaining parental consent.

In any situation where the timelines are adjusted with consent of the parent, such an adjustment should be comprehensively documented in a PR-01.

Ohio Department of Education Guidance

The Ohio Department of Education has also issued some guidance (available here: http://education.ohio.gov/Topics/Student-Supports/Coronavirus/Considerations-for-Students-with-Disabilities-Duri) that is helpful to Ohio schools. ODE states that schools should make “a good faith effort” to provide related services and interventions to students with disabilities if they offer some form of instruction during the closure. ODE goes on to state that “[i]f, however, a student with a disability cannot access the alternate delivery models being offered to general education students, then the district should consult with parents and/or caregivers to determine the needs of the student and identify the most appropriate means for meeting those needs during the closure period.”

Regarding ETRs, ODE expressly states that reviews of ETRs can be completed using a virtual format or via teleconference. If the initial ETR or triennial ETR requires face-to-face assessment or observation, ODE notes that the evaluation will need to be delayed until schools are reopened to students. If the initial ETR or triennial ETR can be completed without such in-person components, the district should attempt to complete the ETRs and meet (via videoconference or conference call) to discuss the results. ODE also clarified that a typical triennial ETR may be done through a records review. In a situation where a triennial evaluation cannot be completed, the district must continue to provide the student with the same services. For all of these scenarios, the district should comprehensively document whatever process it utilizes in a PR-01.

Regarding IEP meetings, if a meeting is necessary, or requested by the parent, to determine adjustments to a student’s IEP, ODE advises that it should be conducted virtually or by phone. When doing so, the manner in which the IEP meeting is conducted should be documented in the PR-01. Importantly, ODE clarified that, consistent with guidance released by the U.S. Department of Education, if a district is shifting instruction to an alternative mode for all students due to COVID-19 and distance learning, it is not required to convene  the IEP  team  or  amend the IEP for the sole purpose of students not attending school in person. This is helpful to clarify that, based on guidance from both the federal and state agencies, school districts do not need to amend every student’s IEP to account for the mandated change to the location of services.

ODE has stated, consistent with the U.S. Department of Education, the determination about whether compensatory education is required should be made on an individual basis after schools reopen for students. IEP teams should review student data to determine whether critical skills have been lost during the pandemic period.