Public School Legal Obligations During the COVID-19 Closures

In this guidance letter, we aim to keep our families informed of what to expect and how their child’s rights may be impacted during Distance Learning. In addition, we have included a Distance Learning Tracker (Excel workbook), that we hope will be helpful in monitoring your student’s progress.

The Coronavirus Aid, Relief, and Economic Security (“CARES”) Act, which was passed by Congress and signed into law on March 27, 2020, required the U.S. Secretary of Education, Betsy DeVos to write a report with information regarding any flexibility or waivers under the Individuals with Disabilities Education Act (“IDEA”) that may be required during the COVID-19 pandemic. On April 27, 2020, Secretary DeVos issued her Report, making it clear that school districts are required to continue providing students a Free Appropriate Public Education (“FAPE”) in the least restrictive environment. The Report did not request waiver authority for any of the core tenets of the IDEA. In other words, your and your child’s rights under federal law have not changed despite the COVID-19 school closures.

Without any waivers, we expect the public school systems (school districts and charter schools) to continue reasonably implementing students’ IEPs despite the closures, consistent with the U.S. Department of Education’s direction.

We have not seen a uniform response to the school closures among California public schools. Some families have reported having access to a Distance Learning Program and an individualized plan for Distance Learning since March, while other families have had to wait until the middle of April. Many parents are reporting that their school districts have not offered an individualized Distance Learning Plan at all. Some are receiving related services such as therapies, while others are only receiving a fraction of the services outlined in their current IEP. Only a few public schools properly notified families regarding a potential disruption in delivery of special education services and IEP implementation. The IDEA requires public schools to send Prior Written Notice (“PWN”) to a student’s family whenever it proposes to “initiate or change, or refuses to initiate or change, the identification, evaluation, or educational placement of the child, or provision of a FAPE to the child.” 34 C.F.R. § 300.503. The law requires that the public school include the following in its PWN letter to families:

1. A description of the action proposed or refused by the public school;
2. An explanation of why the public school proposes or refuses to take the action;
3. A description of each evaluation procedure, assessment, record, or report the public school used as a basis for the proposed or refused action;
4. A statement that the parents of a child with a disability have protection under the procedural safeguards;

Sources for parents to contact to obtain assistance in understanding federal special education laws;

5. A description of other options considered by the IEP team and the reason why those options were rejected; and
6. A description of the factors that are relevant to the public school’s proposal or refusal.

Many public schools did not provide PWN to families and without a PWN letter explaining how and why the public school chose to take a certain action, parents have been denied their right to meaningfully participate in decisions regarding their child’s education.

Without a waiver of special education laws, all California public schools must provide parents with PWN to inform them of any changes to their student’s educational programming.

A few examples of what should be included in an appropriate COVID-19 school closure PWN letter are:

• Which educational services in the student’s IEP would change (if any) due to the COVID-19 school closures.
• Whether and how a comparable IEP would be offered and implemented.
• Whether an IEP meeting to discuss an amendment to the IEP during Distance Learning would take place.
• Whether there would be any changes to an assessment process or timeline.
• Whether an Annual, Triennial or Transition IEP will take place and when.

Unfortunately, your public school district may be misrepresenting its legal responsibilities when citing guidance from the California Department of Education or making reference to California Senate Bill 117, indicating that California has suspended legal timelines related to special education. In most cases, these notices have been misleading and at times have been completely inaccurate. Note that federal law protects your child’s right to special education. Because of this, the state of California cannot legally remove or suspend any of your or your child’s rights under the IDEA without specific authorization from Congress. We recommend reviewing the school’s letters or emails carefully. It’s okay to be skeptical.

If at any time you are unsure of the changes being made to your student’s educational program, we encourage you to reach out to us for guidance. Don’t hesitate to send us letters or emails you receive from your public school.

Moving forward, we strongly encourage you to prepare now and over the summer months. Many families will need to consider alternative educational programs including private school options for the next school year.

If you need more information about how best to use our Distance Learning Tracker (Excel workbook), or would like to discuss your child’s educational program, please contact us.