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U.S. Department Of Education Issues Additional Guidance Regarding Civil Rights Responsibilities During The COVID-19 Pandemic
The U.S. Department of Education released two Question and Answer guidance documents on September 28, 2020. The guidance provides assistance regarding the implementation of the Individuals with Disabilities Education Act in the current COVID-19 environment and school reopening strategies.
The guidance recognized that state educational agencies and local educational agencies may deliver instruction to students through distance instruction, in-person attendance, or a combination of both, but regardless of the delivery method, agencies remain responsible for ensuring it provides a free appropriate public education to all children with disabilities. If state and local decisions require schools to limit or not provide in-person instruction due to health and safety concerns, SEAs, LEAs, and IEP Teams are not relieved of their obligations under the IDEA.
One guidance document provided answers to seven questions in the area of IEPs, initial evaluations, initial and annual IEP Team meetings, and reevaluations. The answers suggested IEP Teams should consider how a school will implement a student’s IEP with traditional in-person instruction and how it could provide services through distance instruction if circumstances require a change to distance learning or a hybrid model. The guidance did not provide any flexibility to the timeline requirements for initial evaluations, initial eligibility determinations, or reevaluations. The Department also encouraged LEAs to investigate all appropriate assessment instruments and tools to determine if it can administer some remotely during the pandemic.
The Department also issued a second guidance document that contained thirteen questions and answers regarding reopening schools during the COVID-19 pandemic.
The guidance stated a school reopening plan or any school policy that prioritized, otherwise gave preference to, or limited programs, supports, or services to students based on their race, color, or national origin violated federal anti-discrimination laws. However, schools may prioritize in-person instruction for students with disabilities in order to provide services necessary to ensure those students receive a Free Appropriate Public Education.
Regarding face-covering mandates, the guidance stated local education agencies should make reasonable modifications to 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.
State or district policies that reduce or limit services specifically for students with disabilities in a particular jurisdiction, without regard to any reasonable modifications or services that may be necessary to meet the individualized needs of those students, violate Section 504. Ultimately, local education agencies are still responsible for complying with provisions of Section 504 and Title II of the Americans with Disabilities Act, including requirements regarding conducting evaluations and reevaluations. Local education agencies must also continue to comply with Title IX regulations, which changed effective August 14.