One of the many issues that schools have struggled to address during school closures due to the coronavirus pandemic involves the delivery of services to special education students. The federal Individuals with Disabilities Education Act (IDEA) defines 13 categories of special education, and it entitles children with disabilities which adversely affect the child’s educational performance to a free appropriate education (FAPE). How can schools deliver special education and related services to qualified students and ensure the receipt of FAPE when students, teachers and related service providers are home and the governor has prohibited all non-essential gatherings?

In a NYSSBA webinar on Saturday, April 11, a State Education Department official addressed questions related to compensatory services – educational services that are provided to students with disabilities to make up for services that they were entitled to but denied due to circumstances that may or may not have been beyond the control of the school district. Assistant Commissioner of Special Education Christopher Suriano said that there is no blanket entitlement to compensatory services for all students with disabilities. Rather, it would be appropriate for school boards to make case-by-case decisions relating to the services and support that individual students were able to receive through distance learning and to implement individualized plans for compensatory education when recommended by the Committee on Special Education (CSE).

Also, Suriano said that districts should track student progress and that some children who otherwise would not be eligible for extended school year services might need them this year, due to substantial regression. Suriano also noted that for students who may qualify, compensatory services could be delivered as part of the child’s program for the next school year, noting that compensatory services are not required to be a complete 1:1 makeup of services that otherwise would have been delivered.

Also, the State Education Department addressed many important issues in a March 27 guidance document entitled “Provision of Services to Students with Disabilities during Statewide School Closures Due to Novel Coronavirus (COVID-19) Outbreak in New York State.”

Here are highlights of that advisory:
 
Distance learning options. During the period of school closure caused by the COVID-19 outbreak, school districts must develop closure plans that include alternative distance learning instructional options for students with disabilities.

Consistent with the fact sheet released by the U.S. Department of Education on March 21, the SED guidance states that school districts should endeavor to deliver IEP special education services either by telephone or online. The guidance provides links to resources such as the National Center on Accessible Educational Materials, which is funded by the U.S. Department of Education’s Office of Special Education Programs. These resources may help school districts identify accommodations needed to help students access the internet and use secure electronic platforms for virtual digital learning and other services.

It is not necessary to amend Individualized Education Programs (IEPs) to reflect on-line or virtual learning as an alternate mode of instructional delivery. However, the district and staff should ensure that any virtual platforms that they use comply with the student record and data privacy requirements of the Family and Educational Rights and Privacy Act (FERPA) and Section 2-d of the New York Education Law.

Telepractice. During a March 28, 2020 webinar hosted by NYSSBA, Suriano noted that different forms of telepractice (delivery of services through electronic means) can aid students with disabilities, including but not limited to preschool students with disabilities and bilingual learners. Suriano also asked school officials to keep in mind that decisions related to telepractice (also known as teletherapy or teleintervention) should be informed by provider assessments and individualized student needs.

IEP amendments are not needed in order to transition to the use of teletherapy during the current period of school closure and distance learning. Important and practical considerations for providing teletherapy include:

• Determining the services that can be effectively delivered through teletherapy.
•  Protecting student data privacy.
• Record-keeping.

All services on a child’s IEP may not be able to be delivered through teletherapy. There may also be an ability to work on some, but not all identified IEP skill/goal areas. Also, there may be differences in the frequency, provider/student ratios and effectiveness of related services delivered through virtual platforms.

During periods of COVID-19-related school closure pursuant to executive orders, preschool-related service providers who provide related services using teletherapy will be reimbursed for the provision of such services at the same rate as services that would have been provided in person if schools were open. In contrast, preschool special education programs and services that are paid on a “fee for service” basis are not currently authorized to bill or be paid for services which are not provided. Additional guidance is available at: http://www.op.nysed.gov/telepracticeguidance.html.

Timelines. In the wake of school closures and other restrictions due to the coronavirus pandemic, SED has expressed an intention to seek federal flexibility with regard to deadlines for the provision of services as well as evaluations, annual reviews and impartial hearings.

Meanwhile, the advice regarding meeting deadlines might be summarized as “do the best you can under the circumstances.” CSE meetings, resolution sessions and impartial hearings are not expected to be held in person. Instead, these may be held telephonically or through virtual online meeting spaces. In addition, state guidance acknowledges that some evaluations that require face-to-face meetings or observations will need to be delayed until school reopens. Nevertheless, the state’s guidance and Suriano have indicated that the federal time constraints for conducting evaluations and re-evaluations still remain in effect. Districts have been encouraged by the state to work with parents and seek consent to delay the performance of in-person evaluations, where appropriate and possible.

Emergency regulations adopted by the Board of Regents on Monday, April 6, provide school districts with some protection from potential claims of untimeliness relating to the provision of special education services to students with disabilities during school closure periods.

The emergency regulations provide that “days” when school buildings are closed pursuant to recent executive orders will not count toward certain deadlines for providing certain services. This exception applies to the requirement that school districts arrange special education programs and services for those who qualify within 60 school days of a family providing consent to have their child evaluated or within 60 school days of a referral for review of a currently classified student with a disability. (Note: The applicable timeline is 30 days in cases in which the placement to be arranged is a state approved private school. That deadline is also extended by the duration of a school closure period.)

Also affected is the requirement that preschool service providers have a 30-day window to make up missed services for students with disabilities. That deadline is also extended by the duration of a school closure period.

In addition, impartial hearing officers are authorized to grant time extensions of up to 60 days to address school closures and are now permitted to schedule and hold impartial hearings by videoconference, if appropriate, provided that measures are taken to protect student data and the confidentiality of the proceedings. Special education regulations also provide that if staff members are absent due to illness or are otherwise unavailable, existing procedures under the regulations can be used to excuse the presence of a CSE member at a meeting. Furthermore, it may be possible to amend a student’s IEP by written agreement without the need for a CSE meeting if the parent and school district follow certain procedures as described in the regulations.

Despite the regulatory relief, school districts should still endeavor to do what is feasible and reasonable, based on individual case-by-case circumstances. It is also suggested that local districts develop proactive protocols for verbal and electronic communication with parents to ensure communication in parents’ dominant language using real time and/or virtual translation services, unless it is clearly not feasible to do so. In addition, it is suggested that school districts develop a template to record information regarding decisions made with regard to the performance of evaluations, distance learning, and IEP implementation. Districts should document their attempts to meet regulatory timelines, and keep records of parental communication and consent received via email or notes.

Placement of students. School districts may have students who have been placed by the CSE or CPSE in approved special education programs, state-operated nonpublic schools, or Special Act school districts. Districts will remain responsible for appropriate per pupil tuition charges during periods of COVID-19- related school closures. State approved programs and non-public schools should provide written notice to such school districts or counties of their closure period and may continue to bill appropriate tuition costs. SED’s March 27, 2020 guidance can be found at the following link: bit.ly/3bcgmPz.

Members of the New York State Association of School Attorneys represent school boards and school districts. This article was written by Beth L. Harris of Shaw, Perelson, May & Lambert, LL