New special-education guidance has been issued by TEA pertaining to the many issues that school districts are currently grappling with. That guidance reiterates that state and federal laws do not provide any flexibility to districts in times of emergency regarding the obligation to provide a Free and Appropriate Public Education (FAPE) to students receiving special education services.
Districts, of course, have a multitude of questions about how to fulfill that obligation. TEA is attempting to address those questions and has established a task force dedicated to this issue.
Logistically, it is important to note that ARD committees may meet telephonically to conduct business. This is critical to keep in mind when reviewing the many obligations discussed below.
According to TEA, if a district’s emergency closure or its transition to distance instruction is anticipated to exceed ten (10) consecutive school days, that is considered a change in placement and will require action by the ARD committee. Additionally, after a district reopens following an extended closure, ARD committees are required to make individualized determinations as to whether any compensatory services are needed.
If a district continues to provide instructional services to the gen-ed population, and an IEP cannot be implemented in its current form, then ARD committees must meet and modify the IEP. On the other hand, if a school is closed, and no services are being offered to anyone, then state evaluation timelines halt.
Related services must be provided when districts transition to digital/distance platforms. Further, ARD committees must change an IEP if the provision of related services results in a change in placement.
If an IEP cannot be implemented through a digital or virtual learning platform, the ARD committee must make a determination as to which services can be provided to meet the student’s needs. Additionally, for IEPs that cannot be implemented virtually, districts may offer educational opportunities at a designated site (e.g., school, third-party location, etc.), but ARD committees must meet to make that change in location.
If an IEP cannot be fully implemented in either a face-to-face or virtual environment, the district should document those services that were not able to be provided to each individual student, and the ARD committee must later make individualized determinations regarding compensatory services. The documentation should be detailed enough to allow the ARD committee to later make these determinations. Districts are also advised to plan for effective communication with families regarding any services that cannot be provided during the COVID-19 response.
With respect to timelines, TEA’s guidance states that if any educational services are being offered (face-to-face or distance), the 45-day timeline for conducting Full and Individual Initial Evaluations (FIIEs) still applies. Any days that a school is not in session—meaning no educational services are offered to any students—do not count as school days for purposes of the FIIE timeline. Following the completion of an FIIE, the 30-calendar-day timeline still applies for ARD committee meetings concerning initial eligibility determinations, IEPs, and placement decisions.
We can expect to receive additional updates from TEA on these issues. Additionally, it has recently been reported the Secretary DeVos is considering providing additional guidance and/or waiver authority to states. We will keep you advised of those updates, as well as any relief legislation or additional guidance from federal agencies that impact special education. If we can help you in any way while you navigate this daunting process, please let us know.