FAQs for LEAs: Serving Disabled Students in the Age of COVID-19

Category: Special Bulletins
Date: Mar 26, 2020 09:41 AM

UPDATED MARCH 26, 2020

Section 504 of the Rehabilitation Act of 1973 (“Section 504”) prohibits discriminating against students with disabilities, and requires local education agencies (“LEAs”) to provide equal educational opportunities to disabled students in the form of Free and Appropriate Education (“FAPE”) in the “Least Restriction Environment” (“LRE”).  The federal Individuals with Disabilities Education Act (“IDEA”) governs the procedural and substantive obligations of LEAs to serve disabled students who qualify for special education and related services, including the obligation to provide eligible students with a FAPE in the LRE. California state laws provide similar protections, and in some cases greater protections, to students with disabilities.

There is significant uncertainty regarding how COVID-19 will impact the provision of special education services to eligible students.  LEAs, including school districts, county offices of education (“COEs”) and charter schools, are already raising a wide range of questions and concerns.  Below we provide general information on the law and LCW’s conclusions regarding LEA legal obligations.  

Please note: this is general information only and does not supplant consideration of your unique factual situations, or consultation with legal counsel. 

I.        GENERAL FAPE OBLIGATIONS

Q: What are a LEA’s general duties to provide FAPE to students with existing IEPs if we close our schools, but are providing educational services through distance education formats to regular education students?

The U.S. Department of Education (“DOE”) Office for Civil Rights (“OCR”) has issued guidance providing that: “[i]f a school district closes its schools and does not provide any educational services to the general student population, then a school would not be required to provide services to students with disabilities during that same period of time.”  In contrast, if a LEA, “continues to provide educational opportunities to the general student population during a school closure” it must ensure, “to the greatest extent possible,” that “each student with a disability can be provided the special education and related services identified in the student’s IEP developed under IDEA, or a plan developed under Section 504. (See 34 CFR §§ 300.101 and 300.201 (IDEA), and 34 CFR § 104.33 (Section 504)).”

While application of these principles will be fact specific, the following general conclusions may assist LEAs in planning and designing services for disabled students. 

A.     LEAs transitioning general education services to remote instruction formats

For LEAs that are transitioning general educational services to remote instruction formats, Section 504 requires that equal access to educational services be provided to disabled students.  “Equal access” means that disabled students are provided with the regular or special education and related aids and services designed to meet their individual educational needs as adequately as the needs of students without disabilities are met.  Keep in mind that all students with IEPs are also covered by the non-discrimination/equal access protections of Section 504. 

Through a Section 504 lens, if a LEA decides (for example) to focus resources on high school seniors so that they can graduate, we conclude that Section 504 would require providing equal services to disabled seniors so as to meet their educational goals and benchmarks.  Conversely, if a LEA suspended all kindergarten and first grade services, it could also suspend kindergarten and first grade services to disabled students under Section 504.  However, as noted below, to the extent these students have IEPs, LEAs may have a separate duty under the IDEA to adhere to their substantive and procedural IDEA obligations.

Additionally, on March 17, 2020, OCR issued further guidance, reminding LEAs that in transitioning general education services to virtual formats, Section 504 requires LEAs to consider how disabled students who participate in those general education classes are going to access such platforms.  This guidance, including a brief webinar, can be found here.    

OCR defines accessibility as the ability of students with disabilities to acquire the same information, engage in the same interactions, and enjoy the same programs and activities as their non-disabled peers, with substantially equivalent ease of use.   Unless LEAs are able to provide alternative and equivalent means of accessing the same information and services, LEAs must provide virtual platforms in a way that is accessible to students with a variety of disabilities.  Assistive technologies must therefore support students who are hearing or vision impaired, have mobility disabilities that may affect their coordination or control of computer hardware such as a mouse, and those with seizure disorders or other cognitive disabilities.  LEAs may contact the OCR Web Access Team at OCRWebAccessTA@ed.gov for questions or technical assistance.  

B.    LEAs  providing informal educational supports

Even if a LEA chooses not to provide distance education to general education students, but informally supports teachers, parents or volunteers with LEA resources or technology, it is our conclusion that this would trigger a LEA’s obligations under Section 504 to provide commensurate services to students with disabilities.    

C.     LEAs temporarily suspending educational services

Even if a LEA opts to shut down its operations, the “equal access” principles of Section 504 do not relieve LEAs of their substantive and procedural obligations under the IDEA.  OCR maintains jurisdiction over the enforcement of Section 504 and Title II of the Americans with Disabilities Act (“ADA”); it does not interpret or enforce the IDEA.  Rather, the Office of Special Education and Rehabilitative Services (OSERS), administers the IDEA.  OSERS has yet to provide relief from, IDEA obligations during the COVID-19 health crisis.  Therefore, OCR’s analysis of FAPE obligations under Section 504 and the ADA are separate from a LEA’s substantive and procedural obligations under the IDEA to deliver a FAPE.  In fact, within OCR’s March 16, 2020 advisory, OCR indicates that agency guidance is “not intended to be a replacement for careful study” of other statutes and implementing regulations. 

This means that, absent further guidance, disabled students who are covered by the IDEA continue to be entitled to receive FAPE consistent with their IEPs, whether or not you are providing educational services to their general education peers.

Q:  We don’t want to delay serving disabled students while we evaluate each individual’s unique needs, but isn’t it a violation of the IDEA and Section 504 to implement an educational service without making that individualized consideration?   We seem caught between a rock and a hard place. 

Yes, it is correct that you are caught between a rock and a hard place.  The IDEA requires that LEAs provide eligible students with a FAPE that is tailored to the individual student’s needs, in the form of an IEP.  Similarly, section 504 requires LEAs engage in an interactive process to identify accommodations the specific student needs in order to ensure equal access to educational programs and activities.  On the other hand, until remote instruction formats are implemented, students are necessarily receiving no educational services at all.  Thus, delaying implementation in order to individualize programs results in a denial of FAPE during the delay.     

However, as counterintuitive as it may seem, this Gordian knot actually makes answering the question “what to do?” easier.  Because both action and delay constitute violations—choose action.  Focus first on deploying education and related services to all disabled students.  Then, review as expeditiously as practicable students’ individual plans, and modify them as needed.  

Q:   Isn’t converting a special education student’s services to a web-based or other distance learning format a change of placement? And if so, how can we do that without getting signed parental consent first?   

Here again—you are caught between a rock and a hard place. Changing a student’s placement from a classroom to a remote learning format does constitute a change of placement.  As such, the IDEA requires that you secure parental consent prior to the change. The IDEA and its implementing regulations require LEAs to ensure that parents/guardians are members of any group that makes the placement decision.  Parents/guardians are integral members of students’ IEP Teams, and it is a substantive denial of FAPE to predetermine a student’s placement without their meaningful input.

However, because schools are closed, during any period of delay, disabled students are receiving no educational services—i.e. no FAPE.  Thus, here again, between action and delay, choose action.  At the same time, given the critical importance of parental involvement, engage parents in good faith as quickly as possible. In sum:

(1)   First focus on making the best educational decision you can, to benefit the greatest number of students, as quickly as possible.

(2)   Keep parents/guardians informed.

a.) Send each parent/guardian written notification of the immediate programs and services that are being implemented for their student. Invite parents to contact specified personnel if they have any questions or concerns;

b.) Let them know that they will each receive an individual, personal communication to discuss their child’s IEP/504 plan, program and services as soon as possible.

c.) Continue to keep parents informed, in real time, regarding the LEA’s efforts, plans, services and supports. Be transparent. Communicate often.

(3)   Then, begin tailoring services individually for students, with parent/guardian participation.  Hold virtual IEP meetings where needed. Consider setting up a method to prioritize review, focusing first on students with the likely greatest need for individual modification to receive educational benefit.  For example, LEAs may want to review the IEPs of nonverbal students and others who will have the greatest difficulty accessing web-based or other virtual formats.  Or, an LEA might prioritize reviewing the IEP and Section 504 plans for graduating seniors. 

(4)   Document your actions, efforts and communications.  Staff should track phone calls and upload official written correspondences in the student’s special education record (i.e. SEIS), emails and/or internal tracking mechanisms.                                                                               

Q: What if a parent/guardian objects to the services we decide to implement?

First, convene a virtual or telephonic IEP meeting, and attempt to address the parent/guardian concerns.  Document all efforts and considerations in your meeting notes.  If you are not able to reach consensus with the parents/guardians, we suggest sending the parent a written response that tracks, as best you can, the content of a prior written notice (“PWN”).  Summarize the IEP meeting and consideration given to the parent/guardian concerns; explain the reasons for the LEA’s placement decision—including both the need to comply with closure orders and safety measures, and how the LEA chose the particular distance learning modalities it is implementing; identify any alternatives considered and why they were rejected; and inform parents/guardians of their procedural rights.

II.        STATUTORY TIMELINES

Q: Will school closures impact any statutory deadlines?  How?

The IDEA and its implementing regulations, as well as state law and regulations under the Education Code, mandate certain deadlines whereby LEAs must complete certain assessments, meetings and establish plans.  For example, under the IDEA’s implementing regulations, LEAs must conduct initial evaluations within 60 days of receiving parental consent for the evaluation; a meeting to develop an IEP must take place within 30 days of determining the student is eligible for special education services; and IEP teams must review IEPs on no less than on an annual basis after initial IEP plan development to determine whether the annual goals for the child are being achieved and revise the plan as needed.

Under state law, the Education Code establishes a 15-day timeline for LEAs to prepare a proposed assessment plan after referral of a pupil for assessment to determine if the pupil is an individual with exceptional needs.  The Education Code also establishes certain timelines by which LEAs must make education records accessible to parents.

To date, the DOE has not provided any significant relief for LEAs from federal statutory deadlines, despite the impacts of COVID-19 on LEA operations.

On March 21, 2020 OSERS, provided a Fact Sheet that addresses IDEA timelines and COVID-19.  There were two important takeaways from the Fact Sheet:

  • The Fact Sheet offers no explicit relief from existing timelines.  However, it provides guidance where OSERS believes existing law allows for modifications to IDEA timelines. It primarily discusses extensions due to mutual agreement of the parties. Additionally, OSERS states that the COVID-19 pandemic could be deemed an “exceptional circumstance.”
  • The Fact sheet provides, “there may be additional questions about meeting the requirements of federal civil rights law; where we can offer flexibility, we will.” We interpret “federal civil rights law” as a reference to Section 504. However, it is unclear how OSERS plans to offer flexibility.

While the DOE has stated that IEP Teams are not required to conduct in-person meetings while schools are closed, it has also stated that “evaluations and re-evaluations that do not require face-to-face assessments or observations may take place while schools are closed, so long as a student’s parent or legal guardian consents. These same principles apply to similar activities conducted by appropriate personnel for a student with a disability who has a plan developed under Section 504, or who is being evaluated under Section 504.”

Media outlets have reported that a third phase of the federal stimulus package may give the DOE power to absolve LEAs of at least some of their legal obligations under the IDEA and Section 504.  The current proposal provides that within 30 days of enactment, the Secretary of Education should prepare a report to Senate committees “with recommendations on any additional waivers the Secretary believes are necessary to be enacted into law,” which would “provide limited flexibility to States and local educational agencies to meet the unique needs of students with disabilities.”   

However, until such a time as the federal government acts to provide such flexibility under federal law to States and LEAs, federal deadlines remain in place. 

In contrast, as we addressed in our March 18 Special Bulletin, Senate Bill (SB) 117 extends the following timelines related to special education students under California state law:

a.) Extends Timelines for Proposed Assessment Plans for Special Education Students

Existing law establishes a 15-day timeline for LEAs to prepare a proposed assessment plan after referral of a pupil for assessment. This 15-day timeline excludes calendar days “between the pupil’s regular school sessions or terms.”  SB 117 requires the State Department of Education to consider the days a school is closed due to COVID-19 as days “between the pupil’s regular school sessions” for purposes of the 15-day timeline. Thus, the 15-day timeline to prepare a proposed assessment plan stops running at the time the school closes due to COVID-19. The timelines will begin to run again when the school reopens and the regular school session reconvenes.

b.) Extends Timeline to Respond to Request for Student Records by Parent of Student Receiving Special Education Services under Special Education Statutes (but Not General Pupil Records Statutes)

Existing law requires LEAs to provide parents of a student receiving special education services with the right and opportunity to examine all school records of the pupil and to receive complete copies of the records in the following circumstances:

  • Within five business days after a request by the parent (orally or in writing);
  • Before any IEP meeting; and
  • Before any hearing or resolution session.

In addition, LEAs must provide a pupil’s special education records to a new LEA where the pupil has enrolled within five working days upon receipt of a request from the new LEA.

SB 117 waives these timelines for a school that has closed due to COVID-19 up until the time the school reopens and the regular school session reconvenes. This waiver applies to all LEAs, even where the LEA offers distance learning, independent study, or both during the closure.  SB 117 states that the Legislature “encourages” LEAs to respond “as expeditiously as possible to requests for records from parents or guardians during the closure.”

There are two notable exceptions. Federal law requires that LEAs provide special education records upon request of a parent or guardian “without unnecessary delay,” and in no case more than 45 days after the request has been made.  In addition, federal law requires LEAs to provide the records before IEP meetings and before resolution sessions.  SB 117 specifically states that it does not waive any of these federal requirements.  LEAs must follow these federal requirements.

In addition, Education Code section 49069.7 requires LEAs to provide all parents (whether their pupils receive special education services or not) with copies of their student’s pupil records within five business days following the date of the request. SB 117 does not reference this requirement. Thus, the extension to provide records pursuant to a parental request does not appear to provide the intended relief because the parent could make the request under section 49069.7.

Similarly, Education Code section 49068 requires a school to transfer a copy of the pupil’s “permanent record” to a new school in which the pupil has enrolled within 10 school days following receipt for the request from the new school.  SB 117 does not reference this requirement.  Thus, LEAs would need to send pupil records within 10 school days following a receipt of a request from the pupil’s new school, despite the extension of time granted with respect to special education records.

Q: What if we have a timeline that we do not think we can meet, given the current school closures? 

(1)   First, let parents know what your plan is for carrying out that particular obligation as soon as practicable and attempt to secure parent/guardian agreement to extend the deadline.

(2)   Second, do your best.

(3)   Third, document your efforts.

Q: If we don’t meet our deadlines to evaluate students and implement services, aren’t we liable for compensatory services? 

Maybe.  But, the reality is that once LEAs return to normal operations, special education students will likely be behind in meeting their goals.  Whether or not they are labeled “compensatory,” LEAs will need to implement plans and services to get students back on track to meet those goals.  Thus, the best approach to avoiding a compensatory services obligation is to minimize delay and implement services as soon as you are able, as discussed above.   

To the extent LEAs are concerned about future liability or being inundated by due process or compliance complaints, LEAs can focus on protecting themselves by engaging in the following practices now:

(1)   High levels of communications with parents, including through the letter discussed above.  Communication should be regular, individualized when practicable, and transparent.  Continue to inform parents what your LEA is doing and why you are taking specific actions.

(2)   Assign case managers to conduct outreach to parents and set a goal of completing all initial conversations by a particular date.  The date identified should be realistic based on the size of your LEA’s special education population and the size of your special education staff.

(3)   Identify all educational and related services you believe your LEA can provide remotely.  For example, in addition to remote learning, is your LEA able to provide teletherapy, speech therapy, adaptive physical education, occupational or physical therapy?  If the LEA is not able to provide in-person physical therapy, can it come up with routines that students can do at home?

(4)   Review individual IEPs as quickly as practicable and identify what needs to be tweaked to deliver the services identified in the IEPs.  We do not recommend altering IEP goals.  Once IEPs are reviewed, schedule an IEP meeting via telephone or video conference.

(5)   Keep good records of communications with parents and other members of students’ IEP teams.  Create internal tracking mechanisms.  Remind staff to retain emails and upload official correspondence to the student’s special education record.

(6)   Consider having your Director of Special Education put out a weekly newsletter.  Weekly newsletters should include an update from the Director as well include lists of recommended free resources that families may want to take advantage of, in addition to the resources and services the LEA will provide.

(7)   Publish your own FAQ for the IDEA/504 population on your LEA’s website.  Questions you may want to include relate to those services that will be provided and those that will be suspended, IEP team communication, statutory deadlines and meeting and hearing timelines/continuances.  We discuss these latter two areas below.     

III.        SETTLEMENT TIMELINES

Q: While not a statutory timeline, how do we address contractual timelines established in settlement agreements? 

Each LEA should identify where it does not think it will be able to comply with a deadline established in a settlement agreement and proactively reach out to the parent/guardian (or legal counsel, if represented) to flag this as an issue.  In this communication, the LEA should identify a proposed revised timeline or alternate mode of compliance.

Taking a proactive approach, as opposed to waiting for a parent or legal counsel to raise a concern, may deter due process or compliance complaints.    

IV.        DUE PROCESS TIMELINES

Q: Will scheduled mediation conferences, pre-hearing conferences and hearings before the Office of Administrative Hearings (OAH) be rescheduled?  

Yes, in part.

  • OAH has continued all non-expedited special education pre-hearing conferences and hearings scheduled through April 17, 2020.  OAH will send notices with rescheduled dates to the parties.  Parties may check their email, US mail, and the OAH online calendar for the new dates.  OAH has warned that receiving such notices may take some time. 
  • Mediation conferences scheduled through April 30, 2020 will take place via telephone or video conference.  Additional information about participation in telephonic and video conference mediations may be found here.  Parties should review this information before participating in any mediation.  This is particularly important because OAH has requested that parties not call OAH before the time of the mediation. 

Q: If we have a case currently pending before OAH, can we cancel the hearing if schools are closed, or we are under a shelter in place order?   

If the hearing is scheduled on or before April 17, it has been canceled as noted above. If it is scheduled or after April17, parties may file a Request for Continuance.  Requests for continuance require a showing of good cause. Thus, the request should include the reason for the continuance.  

Q: May the parties cancel prehearing mediations? 

Parties may agree to cancel scheduled  prehearing mediations due to virus concerns.   All you have to do is notify OAH.  However, since OAH is offering mediations through telephone or video conference, parties should consider moving forward with mediations if they have the bandwidth to do so and it makes practical sense given the particular student. 

V.        FAMILY EDUCATIONAL RIGHTS AND PRIVACY ACT (FERPA) OBLIGATIONS

Q: What are my obligations under FERPA regarding protecting student privacy as we transition special education services to virtual learning platforms?

FERPA is the federal law that protects the privacy of “personally identifiable information” (“PII”) in students’ education records. Federal law defines “education records” as records that are: (1) directly related to a student; and (2) maintained by an educational agency or institution or by a party acting for the agency or institution.  FERPA provides parents and eligible students the right to access a student’s education records, the right to seek to have the records amended, and the right to protect the PII in the student’s education records.  Under FERPA, an educational agency or institution may not disclose PII from students’ education records, without consent, unless the disclosure meets an exception under FERPA. (See 20 U.S.C. 1232g; 34 C.F.R. Part 99.)

Last week, the DOE published a notice (the “Notice”) regarding FERPA and virtual learning.  The Notice links to prior guidance regarding student privacy rights under FERPA.  For example, the Notice links to 2014 DOE guidance, “Protecting Student Privacy While Using Online Education Services: Requirements and Best Practices” and explains that the 2014 guidance “identifies applicable exceptions under FERPA, including the school official exception.”  The Notice further states that the 2014 guidance applies to virtual learning tools, even though the 2014 guidance was “originally developed for online educational services.” 

While we will not provide a full summary of this guidance, the following are important take-aways:

(1)   If a LEA enters into an agreement with a third-party provider to provide educational or related services virtually, the LEA will need to evaluate the services on a case-by-case basis to determine if FERPA-protected information will be disclosed to such parties.

(2)   If students are required to create online accounts to access educational services that include student names and contact information, such information is FERPA-protected.  While this information may constitute “directory information” under FERPA’s exceptions, LEAs must make sure that parents did not opt-out of directory information disclosures under the exception.

(3)   LEAs may be able to disclose PII under the “school official exception.”  However, such disclosures should be analyzed  on a case-by-case basis to determine if the exception applies. (See 34 CFR § 99.31(a)(1)(i).)

The Notice also links to a DOE “Model Terms of Service” document that may be a helpful tool when evaluating virtual learning platforms.  This guidance should be utilized if LEAs are considering entering into new service contracts or revising current contracts. 

Q: Does FERPA require that LEAs obtain signed consent from parents before a student may participate in virtual learning sessions?

No.  The DOE’s guidance last week confirms that LEAs do not need to obtain signed consents for participation in virtual learning or special education classrooms.  As discussed below, the virtual lesson—unless recorded—does not constitute a student record. Thus, parents do not need to consent to the disclosures of identities or information that might occur during delivery of a virtual lesson.

Q: If a LEA records a virtual learning session, is the recording an education record under FERPA?

Yes.  If a LEA records a virtual learning session, the recording becomes an education record under FERPA. The DOE has provided guidance regarding how to identify videos and other images as student records here.  This DOE guidance further explains that when a video recording constitutes an education record for multiple students, “FERPA requires the educational agency or institution to allow, upon request, an individual parent of a student (or the student if the student is an eligible student) to whom the video directly relates to inspect and review, or ‘be informed of’ the content of the video, consistent with the FERPA statutory provisions in 20 U.S.C. § 1232g(a)(1)(A) and regulatory provisions at 34 CFR § 99.12(a).”  Where multiple students are in a video, if the LEA cannot redact or segregate the video to hide the identities of other students, then “the parents of each student to whom the video directly relates” has the right “to inspect and review or ‘be informed of’ the entire record even though it also directly relates to other students.”

Q: Does it violate FERPA if parents observe virtual special education classrooms?

No.  The DOE has explained that FERPA does not prohibit a parent or professional working with the student and parent from observing a special education classroom.  This is because FERPA’s protections and prohibitions apply to the disclosure of tangible records and information derived from those records.  Observing a classroom, whether in person or online does not create an education record. 

However, it is also important to note that while FERPA does not protect the confidentiality of information in general, other laws, such medical privacy laws, may protect information discussed in virtual sessions, such as “telehealth” sessions, e.g. therapy sessions.  We discuss this further below.   

Q:  Should LEAs be concerned about violating FERPA or HIPAA if they offer virtual services like group therapy?

FERPA—No; HIPAA—Probably not.

As explained above, participation in virtual learning activities does not implicate FERPA to the extent the virtual transmission of a session is not recorded.  In contrast, the Health Insurance Portability and Accountability Act (“HIPAA”) may apply in limited circumstances.   

HIPAA does not generally apply to elementary and secondary schools.  This is because under most circumstances a school (1) is not  considered a  “HIPAA covered entity” or (2) even if it is, confidential health information maintained only in the form of student records are covered by FERPA, not HIPPA.

However, if a LEA employs a health care provider, and that provider engages in certain administrative or financial actions, such as electronically transmitting health care claims to a health plan for payment, the LEA is considered a HIPAA covered entity for such purposes and must comply with HIPAA’s “Security Rules” with regard to the electronic transmission of personal health information (PHI).  

Because  telehealth sessions would not be considered a “transaction” that is covered under HIPAA’s Security Rule, LEAs must look to state law, including the Confidentiality of Medical Information Act (“CMIA”), regarding medical privacy to address issues with conducting telehealth sessions.  As explained above, FERPA is not implicated unless such sessions are recorded. 

Similarly, where LEAs contract with outside providers, it is unlikely that the outside provider will be covered by HIPAA.  Health records that directly relate to students and are maintained by a third party contractor, acting for a FERPA-covered LEA qualify as education records subject to FERPA regardless of whether the health care provider is employed by the school.  Here, outside providers are providing services specified in a student’s education plan and are thus acting for a FERPA-covered entity.

Finally, to date, the State of California has not issued any guidance indicating that it is waiving any enforcement provisions under the CMIA or other state medical privacy laws. As these laws address the release of private information—and not just the handling of records—care  should be taken to protect the health information that may be revealed in the course of delivering telehealth services to students. As LEAs consider transitioning to telehealth services for their special education students, we recommend the following:

(1)    Provide parents/guardians with notice of the telehealth service, including who will be involved, the nature of the service and a point of contact for questions.  We do not think consent is legally required (except to the extent consent for IEP services is required generally).

(2)   Where providers (in-district or external) intend to utilize telehealth for group sessions, LEAs should strongly consider issuing ground rules for telehealth group sessions.  For example, ground rules could include that parents/guardians maintain an area free from third-party interference while groups are in session; that they will not record the sessions; and that they will not disclose to others anything overheard during a session.   

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