On March 24, 2020, the Bureau of Special Education issued guidance on the provision of special education during the COVID-19 pandemic. The BSE’s guidance is, in large part, a distillation of the guidance the United States Department of Education [“the Department”] has issued over the past week or more. Of greater note is the BSE’s amplification of the Department’s recent mantra of flexibility. As noted in a prior post, on March 21, 2020, the Department advised that in this “unique and ever-changing environment,” both OCR and OSERS “recognize that these exceptional circumstances may affect how all educational and related services and supports are provided,” and thus, “the Department will offer flexibility where possible.” The BSE’s March 24 guidance echoes that perspective.
In its guidance, the BSE noted that “[a]ll members of our school communities must continue to consider what is appropriate under the current circumstances and reasonable within their resources” (emphasis added). What is striking about this language is that the term “reasonable” has rarely been used in the context of special education services. To the contrary, both the Department and the BSE have traditionally exhibited a disinclination to allow practical reality to intrude upon the rigid enforcement of federal and state special education mandates. It is, therefore, particularly jarring, albeit pleasing, to read the BSE’s proclamation that “[f]ederal disability law allows for flexibility in determining how to meet the individualized needs of students receiving special education services.”
It is safe to say that that sentence will be cited in every post-hearing brief written by every school district attorney in the context of a special education administrative hearing. Granted, that line follows BSE’s observation that in these “[p]resent exceptional circumstances” – borrowing a term from OCR — “[s]chool districts may not be able to provide all services in the same manner that they are typically provided.” Nonetheless, there is nothing in BSE’s phrasing that would limit this flexibility to the current public health crisis.
Long-term applicability aside, BSE’s statement provides districts with some wiggle room as they try to fit a school-based IEP into the virtual confines of distance learning, a situation analogous to squeezing a size-ten foot into a size-six shoe. It also, one hopes, sends a message that the “[p]resent exceptional circumstances” will be weighed heavily in favor of districts should parents seek to adjudicate complaints regarding the provision of IEP services.
In addition to this hopeful language, there are a couple of other interesting aspects of the BSE’s March 24 guidance that merit mention.
Planning and Placement Team Meetings and IEPs
Although the COVID-19 pandemic “may affect how special education and related services are provided,” the contours of these “[c]ontinued educational opportunities are not required to be determined or documented within the Planning and Placement Team process.” The BSE goes on to advise that “school districts are not required to revise an IEP because all students are receiving an alternate mode of instructional delivery” (emphasis in original). Thus, this does “not constitute a change in placement” and no PPT meeting is required. This, of course, is happy news, as were the BSE to direct otherwise, districts would be scrambling to convene hundreds, if not thousands, of PPT meetings.
There is, however, an interesting wrinkle, as the BSE writes that “these opportunities should be individualized based upon the student’s unique needs,” and goes on to recommend that districts promptly “notify parents . . . of your individualized plan for that student.” While the BSE does not use mandatory language in describing this individualization, it would seem to be a strong recommendation. Still, it would appear from the BSE’s March 24 guidance that districts can unilaterally determine what services are “appropriate under the current circumstances and reasonable within their resources,” and that the student’s case manager or individual service provider can do so either on his or her own or in informal collaboration with colleagues.
Annual Reviews
Flexibility aside, the BSE correctly notes: “There are no statutory or regulatory provisions that allow extensions of time to conduct these PPT meetings.” Oddly, though, the BSE then appears to dismiss the need to have timely annual reviews, writing that if the “annual review . . . date is not met, the school district should hold the PPT meeting once school resumes.” As discussed in a prior post, the State does not have the power to waive federally imposed mandates. Furthermore, although the Department’s recent guidance has advised that in-person evaluations should be postponed to the beginning of the new school year, it has shown no similar largesse with respect to annual review timelines. Therefore, unless parents consent to postpone the annual review meeting, districts should endeavor to hold them in a timely manner.
An Interesting Note
Tucked away in a footnote, the BSE observed that the Governor’s Executive Order 7C “provided for cancellation of class, not closure of schools . . . [and that] the school building itself is not closed,” a distinction that was pondered in a prior post. It raises an interesting question as to whether the school could be used as a situs for particularly complex students who require more intensive, one-on-one interventions. Probably not, given that most parents would have understandable concerns about their children’s potential exposure to the Coronavirus, and as the BSE stressed “the need to protect the health and safety of students, and those individuals providing education, specialized instruction, and related services to these students.” Could a school, though, be used by teachers or related-service staff to provide remote video instruction? It is an interesting, if enigmatic, inclusion in the BSE’s guidance.
In general, the March 24 BSE guidance is a positive for school districts. Perhaps the only concern is that when the COVID-19 pandemic is blessedly behind us, the BSE not follow the unfortunate pattern of an individual who claims to no longer be the same person, only to quickly backslide into his or her prior ways.
Pullman & Comley attorneys have been closely monitoring the many developing implications of the COVID-19 pandemic for businesses and for professionals, including law firms. We have been responding, and will continue to respond, to a wide range of risk management questions. The firm’s FOCUS page for the latest COVID-19 advisories may be found here.
