March 23, 2020
On March 18, 2020, the Ohio Department of Education (ODE) issued guidance entitled Consideration for Students with Disabilities during Ohio’s Ordered School-Building Closure. The guidance, as currently written, raises significant questions and related issues as outlined below. School districts are encouraged to contact the ODE directly or through a professional organization with follow-up.
Evaluation Team Reports
The feasibility of completing both initial and reevaluations in a timely fashion is an issue districts are facing. Districts are urged to utilize conference calls and videoconferencing to complete evaluations whenever viable. Signatures can be collected via electronic means, and the meeting, including the means by which the team met and how signatures were collected, should be documented via a prior written notice. It will be important to carefully document how the electronic signatures were obtained to avoid any potential fraud or falsification claims. It will also be important to clearly document how the meeting was conducted in a remote setting to ensure FERPA compliance. The United States Department of Education (USDOE) issued guidance acknowledging that, in instances where face-to-face testing or observations are needed, evaluations will “need to be delayed” until schools reopen to students. Students who were already identified, for whom a reevaluation was pending, would continue to be deemed eligible and should continue to receive services under their individualized education plans (IEPs), although teams can consider whether completion of the evaluation by way of records review is most appropriate. This guidance has been issued by both the United States Department of Education and the Ohio Department of Education.
However, ODE’s March 18th guidance has created confusion regarding initial evaluations. The guidance states: “If the school was scheduled to conduct an evaluation team report review prior to the ordered school-building closure period but was unable to complete it, then consider the student eligible and provide services to students based on your school or district’s processes and procedures.” The language appears to indicate that students who are undergoing an initial evaluation that cannot be completed should be considered eligible under the IDEA until the evaluation can be completed and the team can meet. If this was the intent of the ODE guidance, it raises significant concerns. It would require school districts to provide IDEA services for students absent an evaluation, finding the student eligible. Plus, it would require the development of an IEP without an evaluation team report to drive the goals and services.
To be clear, despite this confusion, we are not recommending that districts make initial eligibility decisions unless the evaluation can be completed and the team can meet (either in person or via phone or videoconference). There may be some instances where an initial evaluation can be completed during the school closure. If the evaluation cannot be completed, a prior written notice indicating that the evaluation will be delayed should be sent. The prior written notice should also indicate that the reason for the delay is the need for face-to-face assessments or observations. Students who were receiving interventions during the evaluation process can, and should, continue to receive these interventions until the evaluation can be completed. The continuation of these interventions should also be noted in the prior written notice.
Amendments to Individualized Education Plans
ODE’s March 18th guidance has also created significant concerns regarding amendments to IEPs. ODE’s guidance states: “School or district personnel should review each IEP to determine the type and frequency of services each student will require during the ordered school building-closure period. If adjustments to specialized services are needed, school personnel should convene the IEP team to review and determine specific services that will be provided during the ordered school-building closure period and revise the IEP accordingly.” This guidance is contrary to the position taken by the USDOE which is not recommending that IEP teams reconvene to make amendments based on changes caused by school closures. Following ODE’s guidance in this area would require school districts to reconvene the IEP teams for every student on an IEP and make changes to the IEP based solely on changes caused by the school-building closure – not based on changes in the student’s needs. Teams would then need to reconvene when school buildings reopen to amend IEPs to reflect in-person services. As IEP services should be driven by student need, not which services can be provided due to outside circumstances, we are not recommending that districts reconvene all IEP teams to make amendments at this time. Instead, districts should continue to assess needs of students on an individual basis, including whether any changes to services are necessary due to the mandated school-building closure. Districts should also communicate with parents via prior written notice, or other means, regarding how and to what extent services will be provided during the mandated school-building closure. See the USDOE Supplemental Guidance issued March 21, 2020, linked here for guidance on amendments during this time.
Compensatory Services and Extended School Year Services
With respect to compensatory services, both the USDOE and the ODE have indicated that individual decisions will need to be made for all students regarding whether, and to what extent, compensatory services are needed based on the mandated school-building closure. However, at this point, no guidance has been provided regarding how to determine whether students on IEPs are entitled to compensatory services. When providing services during the school-building closure, service providers must keep accurate and detailed records of the services provided. We will continue to monitor for further guidance.
Regarding extended school year services, districts should note that the decision regarding extended school year eligibility is distinct from the decision regarding compensatory services. These decisions should be based on regression/recoupment data that has been gathered throughout the school year, including, as may be applicable and appropriate, recoupment data after the present closure comes to an end. While compensatory education and extended school year could be provided over the summer by the same service providers, these decisions are distinct. We will continue to monitor this issue for further guidance as well.
If you have any questions, please contact a Walter | Haverfield attorney. We are here to help.