News from Representative Luria

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Dear Friend,

Due to the COVID-19 crisis, all schools in Virginia are closed for the remainder of the academic year. As a result, school systems have been adjusting to alternative methods of instruction. An important concern is how these changes will affect students enrolled in special education programs. See below for an FAQ from the Virginia Department of Education (VDOE) on special education and student services.

Have there been any discussions about how school divisions will provide free and appropriate public education (FAPE) for students with disabilities?

If a school closure causes educational services for all students to pause within a school or division, the school or division is not required to provide services for students eligible for special education services. In the event of an extended school closure, VDOE has advised that school divisions should consider options to engage students in learning, reading, and thinking that provide equitable access and support for a variety of students. These are not a form of instruction and may not trigger the requirement to provide FAPE to students with disabilities.

If a school division offers general education instructional services by alternative needs, such as distance learning, they will be required to provide FAPE to students with disabilities. The division will be responsible for providing FAPE to these students with an individualized education program (IEP).

Once school resumes, the school must return to providing special education and related services to students with disabilities per their IEP or entitlement to FAPE under Section 504.

What if the school division reopens, but public health officials advise students with disabilities to stay home?

In this case, the U.S. Department of Education’s Office for Civil Rights’ (OCR) guidance states that districts should make provisions to maintain the students’ education services. The school must ensure the student receives a free appropriate public education (FAPE), consistent with protecting the health and safety of the student.

Will the state or federal calendar and timelines for special education be adjusted?

Currently, there is no guidance from the U. S. Department of Education’s Office of Special Education Programs (OSEP) on the waiver of federal timelines related to special education compliance. OSEP has been clear that there is no waiver for natural disasters, but OCR provided guidance that “IEP Teams are not required to meet in person while schools are closed.” OCR has stated, “If an evaluation of a student with a disability requires a face-to-face assessment or observation, the evaluation would need to be delayed until school reopens. Evaluations and re-evaluations that do not require face-to-face assessments or observations may take place while schools are closed, so long as a student’s parent or legal guardian consents. These principles apply to activities conducted by appropriate personnel for students with disabilities who have plans developed under Section 504 or are being evaluated under Section 504.” As a result, local school divisions should develop a plan to maintain these timelines and to document delays.

School divisions should be aware that existing regulations already provide certain types of flexibility to hold meetings and extend timelines. For example, if a parent and school division agree in writing to extend the 65 business day timeline to obtain additional data that cannot be obtained within the 65 business days, the evaluation and eligibility timeline may be extended. Amendments to IEPs may be made without a meeting, and meetings can be conducted virtually or over the phone. They should be flexible in allowing parents to attend IEP meetings through alternative means that communicate options.

Are exemptions being made for any schools to reopen?

The State Superintendent may provide variances on a case by case basis in very limited circumstances. Any request should include at a minimum the following information: (1) Name of program or facility making the request; (2) Size of the student population it serves; (3) Types of services being provided; (4) Reason for request; and (5) Size of staff needed to remain open. If you are a school seeking a variance, please submit your request in writing to the Office of the Superintendent of Public Instruction at Superintendent@doe.virginia.gov.

Will VDOE cancel Standards of Learning (SOL) testing?

On March 23, 2020, Governor Northam ordered all K-12 schools in Virginia to close for the remainder of the academic year. As such, the administration of the SOL tests, the local scoring and score entry requirements for the Virginia Alternate Assessment Program, and the administration of the ACCESS for ELs assessment for English Learners are suspended. 

For students with already identified extended school year (ESY) needs, how will public school closures related to coronavirus impact the provision of these services?

The need for ESY services is a student specific determination and, as such, each child’s IEP Team will need to determine whether a student qualifies for ESY services as a result of school closure due to response to COVID-19. If a student was determined to need ESY services before school closure, then the student would continue to need ESY. The effect of the closure should be evaluated for each student with a disability. This may result in the need for compensatory services in some instances, where the student requires additional services to compensate for a denial of FAPE. In other instances, additional students may require ESY, as when the prolonged absence may increase the likelihood of regression during other breaks. Nothing in the applicable law or regulations restricts the provision of compensatory or ESY to any particular part of the school year or during breaks. 

How will the COVID-19 outbreak affect mediation?

During the pandemic, VDOE will offer virtual mediation by conference call on a case by case basis. The VDOE will make arrangements with the mediator for the conference call. Parents and school staff must jointly agree to utilize mediation in this truncated format. Before the mediation commences, the mediator will obtain signed commitments to confidentiality.

Please know that my team stands ready to assist you and our community as we face the COVID-19 pandemic. For guidance to keep you and your family safe, please click here. You can also view the entire FAQ from the Virginia Department of Education here. If you have any questions, feel free to call our offices at the phone numbers below.

Sincerely,

 

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