Kathryn PerricoLisa Wososzynek

March 19, 2020

As we all continue to navigate the ever-evolving landscape of the COVID-19 crisis and review the various guidance documents from federal, state, and local officials, several guiding principles have begun to emerge in relation to the provision of services to students with disabilities.  First, students with disabilities are entitled to commensurate distance learning opportunities as those being provided to their typical peers.  Second, decisions relating to evaluations of and services for students with disabilities must be individualized; and third, documentation of decisions and the rationale for those decisions will be critical in establishing that a district did not discriminate and did the best it could under the circumstances to satisfy the obligation to provide a free, appropriate, public education to students with disabilities.

While districts are encouraged to continue to communicate with all families about the educational services being provided during the restriction on student attendance, documentation about specific decisions relating to students with disabilities should occur through the use of the Prior Written Notice form (“PR-01” or “Notice”).  PR-01s must be issued by districts when they are proposing or refusing to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child. But there is no regulation restricting when PR-01s may be issued, and many of the individual decisions districts are now making will fall into this discretionary category, but are nevertheless highly recommended.  Even where the PR-01 itself may arguably not be mandatory, the content of the Notice must still include the following:

  • A description of the action proposed or refused by the school district
  • An explanation of why the school district proposes or refuses to take the action
  • A description of each evaluation procedure, assessment, record, or report the school district used as a basis for the proposed or refused action.
  • A statement that the parents of a child with a disability have protection under the procedural safeguards.  SeeA.C. 3301-51-05(H)(2).

As always, as teams prepare these PR-01s, remember to include thorough descriptions of the considerations and circumstances and avoid “boilerplate” responses.

Although recent guidance from the Office for Civil Rights suggests that certain blanket rules may be applied to the evaluation of students with disabilities, districts are encouraged to still make individualized decisions regarding whether and how to proceed with evaluations during this period of restriction on school attendance.  Some factors to consider are:

  • Is there another available means to gather similar information? Is there available data from tiered interventions and classroom performance? Are there any means to gather academic performance data through available online platforms (e.g. curriculum based assessments, progress monitoring tools, etc.)?
  • Are there available assessment results? Historical data? Have assessments such as cognition been administered in the past? Were the results consistent?
  • Is an observation truly necessary to determine special education eligibility and identify the student’s needs? Can an observation be conducted in the current learning setting and still provide pertinent information to the evaluation? Is there a way to observe through the online learning platform? Are teachers able to provide you observation information from recent classroom instruction (even though it will likely not be systematic observation data)? Can you gather similar information through interviews or rating scales?

As teams navigate these considerations, be sure to include parents in the team discussions and decision making and avoid unilateral decisions made by limited team members. While Ohio’s Operating Standards do not require parental consent for teams to conduct records reviews, parents should be involved in discussions regarding whether a record review will be used (in part or in whole) to complete the evaluation. Parental participation is an ongoing requirement and should be documented in the PR-01.

The Ohio Department of Education’s Office for Exceptional Children has issued new guidance which is available here. This guidance covers a wide array of topics.  We will provide a further alert to clients as soon as possible.

Kathryn Perrico is a partner at Walter | Haverfield who focuses her practice on education law. She can be reached at kperrico@walterhav.com or at 216-928-2948.

Lisa Woloszynek is an associate at Walter | Haverfield who focuses her practice on education law. She can be reached at lwoloszynek@walterhav.com and at 216-619-7835.