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An update: IEPs and Section 504 changes affecting services

The Leigh Law Group has been and continues to track the almost daily changes to the laws protecting disabled children, special-education students, Regional Center consumers, and IHSS recipients. While the below is guidance and not intended as legal advice, it should hopefully help the families of individuals with IEPs and Section 504 plans to understand the changes affecting services. We will be addressing Regional Center and IHSS services separately.

While some of the information below is intended to cover federal rights, most of the information tracks the changes taking effect in California. If you live in a state outside of California, you should contact a special-education attorney in your state or locate the laws affecting disability rights in your state. If you believe you need an attorney, you should retain legal counsel to avoid missing any potential statute of limitations that may affect your case.

Here in California, the Leigh Law Group has been pushing ahead with scheduling and attending IEP meetings by phone, zoom and webex (to name a few) amidst the shelter-in-place orders so that their clients do not fall through the cracks during these unprecedented times. We are also attending virtual and telephonic IEP meetings during school closures to ensure that when schools reopen our clients have robust IEP and Section 504 plans in place. 

The Leigh Law Group - How To Reach Us: If you believe that you require advocacy for you or your child the Leigh Law Group team of special education and Section 504 attorneys offers an initial free 30 minute consult where we discuss your potential issues and whether hiring us is appropriate. We offer reasonable rates to our clients and support our clients through every step of the process. Contact us online or call 415-399-9155 for more information.

WHAT GUIDANCE HAS BEEN ISSUED BY THE STATE OF CALIFORNIA AND ITS AGENCIES REGARDING SECTION 504 AND THE IDEA?

  • The United States Department of Education issued most recent but supplemental fact sheet on March 21, 2020: https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/rr/policyguidance/Supple %20Fact%20Sheet%203.21.20%20FINAL.pdf  
  • The United States Department of Education Issued Guidance on March 16, 2020: https://www2.ed.gov/about/offices/list/ocr/docs/ocr-coronavirus-factsheet.pdf 

This guidance covers how schools should provide continuity of services for students with a Section 504 plan or covered by an IEP program. 

  • The California Department of Education's COVID-19 webpage: https://www.cde.ca.gov/ls/he/hn/coronavirus.asp  
  • For CDE's graduation requirements amidst school closures and the COVID-19 shelter-in-place orders, please see: https://www.cde.ca.gov/ls/he/hn/gradegraduationfaq.asp  
  • California Senate Bill 117(SB 117) changed some but not all timelines for special education, such as the time for providing student educational records upon request under California's five-day statutory timeline. Note, some school districts have distributed incorrect and misleading information claiming all special-education timelines have ceased or stopped-that is not accurate! SB 117: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200SB 117  
  • California's special-education guidance: https://www.cde.ca.gov/ls/he/hn/specialedcovid19guidance.asp 

IEP SERVICES:  

  • When is a School District Required to Provide Special Education Services and Accommodations in Accordance with a Section 504 Plan?  

From the U.S. Department of Education:

"If an LEA closes its schools to slow or stop the spread of COVID-19, and does not provide any educational services to the general student population, then an LEA would not be required to provide services to students with disabilities during that same period of time. Once school resumes, the LEA must make every effort to provide special education and related services to the child in accordance with the child's individualized education 3 Leigh Law Group, P.C. program (IEP) or, for students entitled to FAPE under Section 504, consistent with a plan developed to meet the requirements of Section 504."

  • Is it Possible for My Child to Receive Services During COVID-19? 

 Yes.

From CDE:

"If the LEA can continue providing special education and related services as outlined in the IEP, or an agreed upon amendment to the existing IEP, through a distance learning model, they should do so."  

  • My Child Receives Services at a Non-Public School or from a Non-Public Agency. Can Those Continue during COVID-19 and the Shelter-in-Place Orders? 

 Yes.

From CDE:

"Further, LEAs are encouraged to work collaboratively with Nonpublic Schools and Agencies (NPS/As) to ensure continuity of services, including moving to virtual platforms for service delivery to the extent feasible and appropriate. These alternative delivery options should seek to comply with federal, state, and local health official's guidance related to social distancing, with the goal of keeping students, teachers and service providers safe and healthy. Teachers and specialists should work collaboratively to ensure instruction is accessible for the student based on the student's individualized needs." 

  • My School Has Indicated that All Special-Education Timelines No Longer Exist. Is that true? 

 Absolutely not.

On March 16, 2020 the California legislature passed an emergency bill to assist schools with funding and state-law education code compliance. Certain special-education timelines under state law related to a proposed assessment plan and a parent's right to examine and receive school records are waived while a school is closed due to COVID-19. However, the bill clarifies that it does not waive any federal requirements under the Individual with Disabilities Education Act. Under the IDEA, special-education records must be provided within 45 days of a request for a copy of pupil records.

SB 117 also extended deadlines pursuant to the Uniform Complaint Process. For more on what a UCP complaint is and how it is used for Parents and others with complaints related to unlawful acts of public schools visit:

See: https://www.cde.ca.gov/re/cp/uc/ 

  • Are There Any Concerns I Should Have About Tele or Virtual Services? 

1. Privacy: FERPA laws protect students when in a group tele or virtual services. Make sure you understand the protections afforded to your child when services are provided in an online format.

2. Learning the virtual tech tools: Consider asking your IEP team for training.

3. How to implement services consistently: Make sure you document your COVID19 school closure services in an IEP, not informally.

4. Lack of structure: Try to schedule your child's services in a structured way. If you need help, ask your IEP team in writing to consider working with you to train you in how to develop structure in your child's educational day.

5. Group attending: If your child is struggling attending in online groups, consider asking for IEP services that train you to help your child attend. Parent training can be an essential tool in the provision of FAPE during school closures.

  • Is my child still entitled to non public agency and non public schools services? 

 Yes.

From CDE: "Further, LEAs are encouraged to work collaboratively with Nonpublic Schools and Agencies (NPS/As) to ensure continuity of services, including moving to virtual platforms for service delivery to the extent feasible and appropriate. Consider asking for a non public agency to step in to provide additional services to train you how to implement aspects of your child's IEP or Section 504 plan. You can also ask for these services if your child requires related services by an NPA to access their education during a school closures. These areas include speech and language, occupational therapy, vision services, specialized academic instruction such as reading, math or writing methodology etc." 

  • Is My Child Who Is Protected by an IEP or Section 504 Plan Entitled to Compensatory Educational Remedies Due to Lack of FAPE or Services? 

Yes, if your child is not making appropriate progress toward their goals.

All Parents should attempt to track the services and progress of their children to ensure that their children are making progress toward the goals noted in their IEPs. Ask school district service providers to assist you in developing a systematic way of measuring progress on each goal-the who, why, where, when, and how should be consistent and you can ask for training to track progress as well.

From CDE:

"Given the unprecedented situation created by the threat of COVID-19, exceptional circumstances may affect how a particular service is provided under a student's IEP. In such a situation, the IEP team will need to make individualized decisions regarding whether compensatory services are required when the regular provision of services resumes."

From the U.S. Department of Education:

"The Department understands that there may be exceptional circumstances that could affect how a particular service is provided. If a student does not receive services after an extended period of time, the student's IEP Team, or appropriate personnel under Section 504, must make an individualized determination whether and to what extent compensatory services are needed consistent with the respective applicable requirements, including to make up for any skills that may have been lost." 

  • How Do I Get the Ball Rolling with My School District to Ask for IEP Services or for Section 504 Plan Implementation During COVID-19?  

We recommend that you send an e-mail asking for an IEP to discuss your child's services so that your request is documented. This e-mail should be sent to your child's case manager, the school site principal, and the classroom teachers as well as related services providers.

From CDE:

"If an LEA offers distance learning for instructional delivery in lieu of regular classroom instruction during a school site closure for students, what is the obligation to implement the IEP for students with disabilities? As a result of Governor Newsom's Executive Order N-26-20, schools will receive funding to continue delivering educational opportunities to students to the extent feasible through, among other options, distance learning and/or independent study. When an LEA continues to provide educational opportunities to the general student population during physical school site closures, the LEA must ensure that students with disabilities have equitable access to comparable opportunities, appropriately tailored to the individualized need of a student to ensure meaningful access, as determined through the IEP process to the extent feasible.

If the LEA can continue providing special education and related services as outlined in the IEP, or an agreed upon amendment to the existing IEP, through a distance learning model, they should do so. The LEA can also consider alternative service delivery options such as in-home service delivery, meeting with individual students at school sites, or other appropriate locations to deliver services. Further, LEAs are encouraged to work collaboratively with Nonpublic Schools and Agencies (NPS/As) to ensure continuity of services, including moving to virtual platforms for service delivery to the extent feasible and appropriate.

These alternative delivery options should seek to comply with federal, state, and local health official's guidance related to social distancing, with the goal of keeping students, teachers and service providers safe and healthy. Teachers and specialists should work collaboratively to ensure instruction is accessible for the student based on the student's individualized needs. Given the unprecedented situation created by the threat of COVID19, exceptional circumstances may affect how a particular service is provided under a student's IEP. In such a situation, the IEP team will need to make individualized decisions regarding whether compensatory services are required when the regular provision of services resumes.

Further guidance on distance learning, including considerations for students with disabilities, can be accessed on the CDE website at https://www.cde.ca.gov/ls/he/hn/guidance.asp."

  • My Child's Teachers Have Reached Out to Me Outside of the IEP Process to Provide Services. How Should I Respond?  

You should respond immediately. Make sure you understand all of the services being offered, the workload, how structure will be developed, and when an IEP meeting will be held to determine which services will be implemented, the format they will be implemented, and whether you or your child will need an IEP to request any changes to the IEP services or delivery model. 

  • If My Child is Receiving Services Virtually, Do Any Privacy Laws Apply? 

Yes. For more information on privacy during COVID-19 and the FERPA laws visit:

https://studentprivacy.ed.gov/sites/default/files/resource_document/file/FERPA%20and% 20Coronavirus%20Frequently%20Asked%20Questions.pdf

The takeaway:

Assuming that during the virtual lesson, private protected information from student education records is not disclosed, FERPA would not prohibit a non-student from observing the lesson.

The FERPA directory information exception permits certain protected student education records which an educational agency or institution has designated as directory information to be disclosed during classroom instruction to students who are enrolled in, and attending, a class.

The directory information exception may not be used to opt out of disclosures of a student's name, identifier, or institutional email address in a class in which the student is enrolled. 34 C.F.R. § 99.37(c)(1).

Non-students should be discouraged from observing virtual classrooms in the event that protected information from a student's education record is, in fact, disclosed in such virtual classrooms.

Schools should advise Parents and student that when they are participating in the virtual classroom they should not be sharing or recording any of the lessons to protect student privacy.

CALIFORNIA SPECIAL-EDUCATION HEARINGS:

  • Are Due Process Hearings Taking Place to Challenge the Decisions of IEP offers and the Denials of FAPE? 

 Yes.

The Office of Administrative Hearing ("OAH") has issued guidance on how specialeducation hearings, evidence exchanges, and mediation will be handled during the COVID-19 pandemic shelter-in-place orders. To review, visit:

https://www.dgs.ca.gov/OAH/Case-Types/Special-Education/Resources/SE-CoronavirusUpdate/#@ViewBag.JumpTo

The important takeaways:

1. Mediations are voluntary but are still being offered.

2. You can request a continuance in the event that your school continues to remain "closed."A school district offering virtual, online, telephonic or other educational services is not "closed."

As more changes take place, we will continue to provide information. 

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