California Department of Education Issues New Special Education Guidance for COVID-19

Source: https://www.cde.ca.gov/ls/he/hn/specialedcovid19guidance.asp

COVID-19 School Closures and Services to Students with Disabilities

New Guidance (Posted 09-Apr-2020)

The United States is currently experiencing a pandemic emergency due to the threat of novel coronavirus (COVID-19). On March 13, 2020, Governor Newsom signed Executive Order N-26-20 requiring the California Department of Education (CDE) to issue guidance on several topics, including ensuring students with disabilities (SWD) receive a free appropriate public education (FAPE) consistent with their individualized education program (IEP) and meeting other procedural requirements under the Individuals with Disabilities Education Act (IDEA) and California law. Initial guidance on services to students with disabilities was provided on March 20, 2020.

The following guidance provides additional information based on questions received by the CDE in recent weeks. We will continue to update the guidance on this web page as necessary in response to any guidance from the U.S. Department of Education or waivers of any laws or regulations pertaining to special education services. 

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

   No, not all IEPs will need to be amended. In response to the Governor's Executive Order, schools are physically closed, and local educational agencies (LEAs) are to provide educational services through alternative options such as distance learning. Under this unique circumstance, in the CDE's view it is not necessary for an LEA to convene an IEP team meeting, or propose an IEP amendment without a team meeting, for every student, solely 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. Similarly, in the CDE's view, it is not necessary for an LEA to obtain the parent's written consent to provide previously agreed-upon services, away from school. The IEP that was in effect at the time of physical school closure remains in effect, and LEAs should, to the greatest extent possible, continue to provide the services called for in those IEPs in alternative ways. 

   According to the United States Department of Education (USDOE) Office of Special Education Program's (OSEP) March 21, 2020 guidance, "[T]hese exceptional circumstances may affect how all educational and related services and supports are provided . . . the provision of [free and appropriate public education (FAPE)] may include, as appropriate, special education and related services provided through distance instruction provided virtually, online, or telephonically . . . schools may not be able to provide all services in the same manner that they are typically provided . . . federal disability law allows for flexibility in determining how to meet the individual needs of students with disabilities. The determination of how FAPE is to be provided may need to be different in this time of unprecedented national emergency." To review OSEP’s March 21, 2020 guidance titled “Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities”, visit the USDOE website at https://bit.ly/2VdoJn6. 
   
   However, there may be instances when amending the IEP to reflect the change to distance learning might be necessary and/or appropriate. LEAs may convene an IEP team meeting, or propose an IEP amendment without a team meeting, particularly where it is deemed necessary to address unique circumstances related to alternative service delivery. (See 20 USC 1414 (d)(4)(A); 20 USC 1414 (d)(3)(D); 34 C.F.R. § 300.324.) Parents too may request an IEP meeting or propose an IEP amendment, pursuant to Education Code § 56343, subdivision (c). Some LEAs and parents have agreed to amend the IEP by incorporating a distance learning plan outlining the special education and related services being provided to the student during the temporary, emergency situation created by the COVID-19 pandemic.

   At this time, LEAs should necessarily be focused on serving each and every student. OSEP’s March 21, 2020 guidance clarifies that “ensuring compliance with the Individuals with Disabilities Education Act . . . should not prevent any school from offering educational programs through distance instruction.” The CDE recognizes that due to the emergency situation created by the COVID-19 pandemic, it will take time for LEAs to determine their continuum of services during school site closures and provide information to parents and students about the services being offered. As such, communication and collaboration are vital. It is recommended 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.

2. 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?
   
   

   No. In some exceptional situations, LEAs may need to provide certain supports and services to individual students in-person 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). With that said, alternative service delivery options 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 such cases, service providers may be considered “Essential Critical Infrastructure Workers” under Executive Order N-33-20. To review the list of “Essential Critical Infrastructure Workers”, see the California Coronavirus (COVID-19) Response website at https://covid19.ca.gov/img/EssentialCriticalInfrastructureWorkers.pdf. 

   For example, the list of essential workers in the healthcare/public health sector includes:

   • Health care providers and caregivers (e.g. physicians, psychologists, mid-level practitioners, nurses and assistants, physical and occupational therapists and assistants, social workers, speech pathologists, and diagnostic and therapeutic technicians and technologists).

   • Behavioral health workers (including mental and substance use disorder) responsible for coordination, outreach, engagement, and treatment to individuals in need of mental health and/or substance use disorder services.

   • Workers who provide support to vulnerable populations to ensure their health and well-being including family care providers.

     In addition, other community-based government operations and essential functions includes:

     • Workers supporting public and private childcare establishments, pre-K establishments, K-12 schools, colleges, and universities for purposes of distance learning, provision of school meals, or care and supervision of minors to support essential workforce across all sectors.
       

     Therefore, if an individualized determination is made that a student needs services or supports in-person to maintain their 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), an LEA is not necessarily precluded from providing that service by Governor Newsom’s stay at home order.
     

3. 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?
   
   

   Questions about your student’s IEP and educational program in light of school site closures and the COVID-19 pandemic should be discussed with your school or district. Schools across the state are responding to the COVID-19 pandemic in different ways, specific to the school’s regional context. The CDE encourages parents to reach out to their school or district office to have a conversation about the impact of the pandemic on their student’s education and collaborative ways to support the student during this time. 

   Parents of students with disabilities may also reach out to California’s parent organizations offering support and resources to families of students with disabilities. Information on parent organizations can be accessed on the CDE website at https://www.cde.ca.gov/sp/se/qa/caprntorg.asp.
   
   In addition, the Understood.org website is an example of numerous state and national organizations offering practical advice and strategies for parents and caregivers during this crisis. A link to COVID-19 resources for parents and families developed by Understood can be accessed on the Understood.org website at https://www.understood.org/en/school-learning/coronavirus-latest-updates.

4. 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? 
   
   

   34 C.F.R. §§ 300.101(b) and 300.124(b) require that an IEP or IFSP is developed and is being implemented by the third birthday of a child participating in Part C programs and who will participate in Part B preschool programs. The U.S. Department of Education has not waived or exempted this requirement. Either an IEP or IFSP must be developed and implemented by the child’s third birthday. To meet this obligation, teams may conduct meetings virtually via telephone, videoconference, or other means. 

5. If IEP teams meet virtually while school sites are closed due to COVID-19, how should parent consent be obtained? Is verbal consent sufficient?
   
   34 C.F.R. § 300.9(b) states that “consent” means in part “. . .the parent understands and agrees in writing. . .”. Thus, verbal consent alone is not sufficient. However, the IDEA does not specify how written consent must be obtained. Therefore, LEAs that wish to utilize electronic or digital signatures for consent may do so if they choose. Options for electronic signatures or digital signatures could include but are not limited to use of applications such as HelloSign, DocuSign, Adobe Sign, as well as scanned copies or photographs of signed signature pages. For record keeping purposes, it is recommended that LEAs maintain documentation as proof of consent, including printed or mailed copies of signed documents.

   For more information on general electronic signature requirements for public agencies in California, please refer to Government Code § 16.5, and Title 2 of the California Code of Regulations, §§ 22000 et seq.

Earlier Guidance

March 20, 2020

The United States is currently experiencing a pandemic emergency due to the threat of novel coronavirus (COVID-19). On March 13, 2020, Governor Newsom signed Executive Order N-26-20 ensuring State funding for Local Educational Agencies (LEA) in the event of physical closure due to the threat of COVID-19. The Executive Order requires the California Department of Education (CDE) to issue guidance on several topics, including ensuring students with disabilities (SWD) receive a free appropriate public education (FAPE) consistent with their individualized education program (IEP) and meeting other procedural requirements under the Individuals with Disabilities Education Act (IDEA) and California law.

At this time, the federal government has not waived the federal requirements under the Individuals with Disabilities Education Act (IDEA). To review guidance from the USDOE titled “Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak,” visit the USDOE website at https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/qa-covid-19-03-12-2020.pdf. The CDE and the California State Board of Education (SBE) are working with the United States Department of Education (USDOE) to determine what flexibilities or waivers may be issued in light of the extraordinary circumstances. Until and unless USDOE ultimately provides flexibilities under federal law, LEAs should do their best in adhering to IDEA requirements, including federally mandated timelines, to the maximum extent possible. LEAs are encouraged to consider ways to use distance technology to meet these obligations. However, the CDE acknowledges the complex, unprecedented challenges LEAs are experiencing from the threat of COVID-19. As such, the CDE is committed to a reasonable approach to compliance monitoring that accounts for the exceptional circumstances facing the state.

The CDE appreciates the difficult decisions that LEAs and families are faced with as we grapple with this unprecedented crisis. The CDE has formed a workgroup of special education practitioners and other experts to help brainstorm best practices that we plan to share in the coming weeks. In addition, resources for addressing the needs of students with disabilities are provided in this guidance and in the CDE’s guidance on distance learning at https://www.cde.ca.gov/ls/he/hn/guidance.asp. We will update this guidance as necessary in response to any guidance from the U.S. Department of Education or waivers of any laws or regulations pertaining to special education services. 

The following answers to frequently asked questions received by the CDE provides guidance on topics relevant to serving students with disabilities.

1. 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 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. 
   
   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. 
   

2. What is considered equitable access for students with disabilities?
   
   

   When an LEA provides services to students during a school site closure, the LEA must provide equitable access to those services for students with disabilities, with services appropriately tailored to the individualized needs of students, to the greatest extent possible. When LEAs are providing instruction through a distance learning model to replace what would have been provided in the classroom, LEAs must create access to the instruction for students with disabilities, including planning for appropriate modifications or accommodations based on the individualized needs of each student and the differences created by the change in modality (e.g. virtual vs. classroom-based). Educational and support services provided should be commensurate with those identified in the IEP for each student to ensure educational benefit.  
   
   For example, LEAs may consider the use of accessible distance technology, instructional phone calls, and other curriculum-based activities that have been scaffolded based on student need. More information on accessibility and distance learning can be accessed on the CDE website at https://www.cde.ca.gov/ls/he/hn/appendix2.asp.
   
   In some cases, it may be appropriate for LEAs to consider providing classroom-based instruction to small groups of students with disabilities that have extensive support needs, despite the fact that the school site has closed, consistent with federal, state, and local health directives related to COVID-19. Alternative service 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. There is no single service delivery method that will meet the needs of every student. Therefore, LEAs should consider employing a variety of service delivery options. The CDE has convened a work group of special educators to develop more specific guidance for operationalizing such strategies, including examples from California LEAs.

3. If distance learning is provided in some capacity but does not mirror the offer of FAPE in the IEP, will compensatory services be required once an LEA resumes the regular school session?
   Once the regular school session resumes, LEAs should plan to make individualized determinations, in collaboration with the IEP team, regarding whether or not compensatory education and services may be needed for a student. Educational need can be measured by assessing whether or not the student continued making progress in the general education curriculum, or alternative course of study specified in their IEP, or toward meeting their individualized IEP goals and/or if any regression occurred during the period of school site closure.
   

4. Is the CDE encouraging continued utilization of and payment to Nonpublic Schools and Agencies (NPS/As)?
   Yes. California NPS/As provide critical programs and related services to students with disabilities. LEAs should work collaboratively with NPS/As to ensure continuity of services, including moving to virtual platforms for service delivery to the extent feasible and appropriate. In an effort to ensure that the full continuum of placements and service delivery options remains available to students and LEAs subsequent to these unprecedented school site closures, CDE encourages LEAs to continue to use the services of NPS/As during school site closures, including distance learning options made available by NPS/As, so that NPS/As may continue to receive payment in accordance with pupils IEPs and the Master Contracts/Individual Service Agreements between LEAs and NPS/As.
   

5. When school sites are closed and no services or instruction are being provided for a period of time, can LEAs consider providing some special education services to some students? How should LEAs determine what services can or should be provided? 
   Yes. To be clear, CDE is not recommending this as an option. Consistent with Executive Order N-26-20, LEAs are continuing to receive ADA funding during school site closures so they will continue to provide services to all students, including students with disabilities. Should services be discontinued for a period of time, LEAs and IEP teams would be required to make an individualized determination as to whether compensatory services are needed once services resume. 
   
   At this uncertain time, it is imperative to keep the safety of students as the primary consideration for every decision made. As LEAs strive for equitable supports and services for students, in some exceptional situations, LEAs may need to provide certain supports and services to individual students with extensive support needs in order to maintain their mental/physical health and safety. The LEA may provide such services, even if the services are not available to all students with disabilities during a school site closure. As such, LEAs should make individualized determinations about the need to provide services to ensure the mental/physical health and safety of a student with a disability, even during a school site closure, if those services are able to be provided consistent with federal, state, and local health directives. 
   

6. How will state and federal grants be impacted by school site closures (e.g. Alternative Dispute Resolution, Workability, Supporting Inclusive Practices, etc.)?
   Federal and state grants already funded should continue with their program deliverables. In cases where grant deliverables cannot be provided, grantees should work with their CDE program and fiscal contact to determine next steps. If grants have scheduled in-person conferences, institutes, training, or workshops they should be rescheduled or delivered virtually. Any grant amendments or change in due date for expenditure reports will need to be done on a case by case basis due to the specific requirements of funding sources. 
   

7. What is the impact of school site closures on special education monitoring timelines and processes? 
   
   At this time, the federal government has not waived the federal requirements under the IDEA. The CDE and SBE are working with the USDOE to determine what flexibilities or waivers may be issued in light of the extraordinary circumstances. Until and unless USDOE ultimately provides flexibilities under federal law, LEAs should do their best in adhering to IDEA requirements, including federally mandated timelines, to the maximum extent possible. LEAs are encouraged to consider ways to use distance technology to meet these obligations. However, the CDE acknowledges the complex, unprecedented challenges LEAs are experiencing from the threat of COVID-19. As such, the CDE is committed to a reasonable approach to compliance monitoring that accounts for the exceptional circumstances facing the state. 
   In general, for purposes of determining LEA compliance with special education timelines, the CDE will consider the days of school site closure as days between the pupil’s regular school session, similar to school breaks in excess of five days planned in the instructional calendar (e.g. Thanksgiving break). For annual or triennial IEP reviews that fall on a day when the LEA is closed due to COVID-19, the CDE will take the exceptional circumstances causing the delay into consideration for purposes of LEA compliance monitoring. 
   
   In addition, due dates issued by the CDE for Special Education Division monitoring activities, including Targeted Monitoring, Intensive Monitoring, and Significant Disproportionality have been extended for a minimum of two months from the date of this notice. The CDE will continue to evaluate the need for further extensions and will work with LEAs to be reasonable and accommodating given these exceptional circumstances. At this time, the USDOE has not extended the allowable Comprehensive Coordinated Early Intervening Services budget period of 27 months.If an LEA is having difficulty meeting timelines or has questions related to timelines, please contact your regional Intensive Monitoring Consultant. A list of regional consultants is available at https://www.cde.ca.gov/sp/se/qa/fmtacncnt.asp.
   

8. What is the impact of school site closures on state complaints and due process hearings under the IDEA?
   Regarding the state complaint process, in light of widespread school site closures and the inability of LEAs to meaningfully respond to complaint investigations, the CDE will be extending current complaint investigation timelines for good cause by the length of any school site closure during the stated emergency. It is anticipated that once LEAs reopen and are available to participate in the investigation process, the 60-day timeline will recommence and both the complainant and LEA will be notified. The CDE will continue to receive complaints that allege violations of the IDEA and complainants will be notified of any delay that may impact the investigation. 
   
   Currently, California’s system for due process hearings and mediation through the Office of Administrative Hearings (OAH) remains operational, although some processes and/or timelines may be impacted by widespread school site closures and in order to maintain compliance with federal, state, and local health directives related to COVID-19. Updated information on the impact of COVID-19 on special education due process hearings can be accessed on the OAH’s website at https://www.dgs.ca.gov/OAH/Case-Types/Special-Education/Resources/SE-Coronavirus-Update/#@ViewBag.JumpTo.
   

9. What is the impact on services to students with disabilities served by Part C of the IDEA? 
   
   For information related to the impact of the COVID-19 response on services to students with disabilities, ages 0 to 3, served under Part C of the IDEA, please visit the California Department of Developmental Services website at https://www.dds.ca.gov/corona-virus-information-and-resources/ 
   In addition, IDEA Part C and COVID-19 are addressed in guidance from the USDOE’s Office of Special Education Programs, which can be accessed on the USDOE website at https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/qa-covid-19-03-12-2020.pdf.
   

10. Where can I find more guidance and resources related to serving students with disabilities, distance learning, and online accessibility?
    
    

    • To review previous guidance related to COVID-19 and services to students with disabilities, issued by the CDE on March 13, 2020, visit the CDE website at https://www.cde.ca.gov/sp/se/lr/om031320.asp. 
      

    • For updated information and resources from the CDE related to the COVID-19 response, visit the CDE website at https://www.cde.ca.gov/ls/he/hn/coronavirus.asp. 
      

    • To review federal guidance from the USDOE titled “Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak,” visit the USDOE website at https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/qa-covid-19-03-12-2020.pdf.  
      

    • To review federal guidance from the USDOE Office of Civil Rights on how to protect students’ civil rights, visit the USDOE website at https://www2.ed.gov/about/offices/list/ocr/docs/ocr-coronavirus-fact-sheet.pdf?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term.
      

    • Guidance issued by the CDE 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. 
      

    • For research on how online learning can be made more accessible, engaging, and effective for K-12 learners with disabilities, visit the Center on Online Learning and Students with Disabilities webpage at http://www.centerononlinelearning.res.ku.edu/. 
      

    • Common Sense Media has curated a list of the Best Special Education Applications and Websites based on recommendations by educators who work with students with disabilities, which can be accessed on the Common Sense Media website at https://www.commonsense.org/education/top-picks/best-special-education-apps-and-websites. 
      

    • The Council for Exceptional Children (CEC) has developed COVID-19 Information for Special Educators, including a forum for members on how to adapt IEP services during school closures, which can be accessed on the CEC website at https://www.cec.sped.org/~/media/Files/News/A%20Message%20on%20COVID19_%20Supporting%20Students%20with%20Exceptionalities.pdf. 
      

    • The Council of Administrators of Special Education (CASE) has developed a resource page for Special Education Administrators, which can be accessed at https://docs.google.com/document/d/1zEH-ggcHSI7sRQy5IpPEC0FaP4Vw5Wm0uUooruNFmrI/preview. 
      

    • The State Educational Technology Directors Association (SETDA) offers strategies and resources for ensuring that online learning supports students with disabilities, which can be accessed on the SETDA website at https://www.setda.org/main-coalitions/elearning/accessibility/.

Questions:   California Department of Education | 916-319-0800