Legal Update Memo No. 27-2020 - Updated Guidance from CDE – COVID-19 School Closures and Services to Students with Disabilities (K-12) - School & College Legal Services of California

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Our office previously issued Legal Update 12-2020 regarding the March 12, 2020, U.S. Department of Education guidance on services to students with disabilities during the COVID-19 outbreak.

On March 20, 2020, the California Department of Education (“CDE”) issued guidance in a ten question and answer format interpreting the U.S. Department of Education guidance. This guidance left unanswered questions such as the need to convene an Individualized Education Program (“IEP”) meeting for students with disabilities, the provision of special education services within a student’s home, and other important issues.

On April 9, 2020, CDE updated its guidance to address and answer five questions. CDE’s new guidance is included within this Legal Update.[1] This Legal Update will summarize the additional five questions and answers from CDE.

Please note, CDE has still not provided guidance on important issues such as the assessment required for a student transitioning from Part C to Part B of the Individuals with Disabilities Education Act (“IDEA”), considerations associated with potential compensatory education, and other important issues. We are hopeful that further guidance from CDE will address these issues.

Must all Individualized Education Programs (IEPs) be amended to reflect the change to distance learning?

CDE stated that not all IEPs will need to be amended “for the purpose of discussing the need to provide services away from school, because that change must necessarily occur due to the COVID-19 pandemic.” Local Educational Agencies (“LEAs”) are also not required to obtain written consent from parents to implement previously agreed-upon services away from school. LEAs should continue to in “the greatest extent possible, continue to provide the services called for in those IEPs in alternative ways.”

CDE clarified that for some students, on a case-by-case basis, there may be a need to amend a student’s IEP through an IEP meeting (which could be convened remotely or through an IEP amendment without a meeting) to “address unique circumstances related to alternative service delivery.” Parents also have the right to request an IEP meeting be convened.

CDE advised that LEAs “maintain regular communication with parents of students with disabilities about their efforts to transition to distance learning, plans to ensure access for all students, and to identify and address any immediate support needs when feasible.”

Is an LEA precluded from providing services to students with disabilities in-person or in the home for the purpose of supporting the student in accessing the alternative options for learning being offered?

CDE has advised that in “some exceptional circumstances” LEAs may need “to provide certain supports and services to individual students in-person [student’s home] in order to maintain students’ mental/physical health and safety for the purpose of supporting the student in accessing the alternative options for learning being offered (e.g. distance learning).”

At the same time, CDE also stated that LEAs service providers “should seek to comply with federal, state, and local health official’s guidance related to physical distancing, with the goal of keeping students, teachers and service providers safe and healthy as the primary consideration.”

In summary, a LEA is not necessarily precluded from providing special education services within a student’s home as service providers are “Essential Critical Infrastructure Workers.”[2]

I’m a parent of a student with a disability and I have questions about my child’s IEP. Where can I go for information and support?

In addition to informing parents to contact their respective LEA, CDE also provided various internet-based resources for parents.

What should an LEA do if it has closed school sites due to COVID-19 and is unable to meet the obligation to have an IEP or an Individual Family Service Plan (IFSP) in effect for a child transitioning from Part C to Part B no later than the child’s third birthday?

While not addressing the assessment required with a student turning three years of age and the transition from Part C to Part B of the IDEA, CDE reiterated that either an IEP or Individual Family Service Plan (“IFSP”) “must be developed and implemented by the child’s third birthday” and to “meet this obligation, teams may conduct meetings virtually via telephone, videoconference, or other means.”

If IEP teams meet virtually while school sites are closed due to COVID-19, how should parent consent be obtained? Is verbal consent sufficient?

LEAs must obtain written consent from parents associated with changes to a student’s IEP – verbal consent is not sufficient. As discussed in our Legal Update 22-2020, a parent’s written consent can be completed digitally through platforms such as “HelloSign, DocuSign, Adobe Sign, as well as scanned copies or photographs of signed signature pages.” LEAs are advised to keep a copy of all applicable correspondence from a student’s parent as proof of consent.

Please contact our office with questions regarding this Legal Update or any other legal matter.

The information in this Legal Update is provided as a summary of law and is not intended as legal advice. Application of the law may vary depending on the particular facts and circumstances at issue. We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

[1] CDE’s April 9, 2020, New Guidance is also available at: https://www.cde.ca.gov/ls/he/hn/specialedcovid19guidance.asp.

[2] Referenced in the Governor’s March 19, 2020, Executive Order N-33-20.

Legal Update Memo No. 27-2020 – Updated Guidance from CDE – COVID-19 School Closures and Services to Students with Disabilities (K-12)

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