In the Nick of Time—Special Education Timelines During School Closures for COVID-19

Franczek P.C.
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Franczek P.C.

In the wake of Governor Pritzker’s recent order requiring all Illinois schools to close between March 17 and March 30, many schools and school districts have been left guessing how to best serve students with disabilities and comply with IDEA timelines during the closure. While forthcoming guidance from ISBE and the U.S. Department of Education may provide additional flexibility and clarity, for now we can share the following update to ease your mind a bit. In summary, schools can safely consider that all special education deadlines calculated using “school days,” including evaluations, are postponed. Guidance is limited with respect to other timelines and so we recommend that you contact legal counsel to address how your school district will proceed with those calculations.

Per the Governor’s order, all days that schools are required to be closed between March 17 and March 30 are considered Act of God days, which count toward the required number of student attendance days and are not required to be made up at the end of the school year. Under current ISBE guidance, this designation means the days are not instructional days — days when students are required to be in attendance — and so none of the days count as school days even if a district provides educational continuity through an approved e-learning program.

What does that mean for special education timelines? According to ISBE, because the mandated closure days do not count as school days any special education deadlines calculated using school days are postponed. Therefore, all timelines counted in school days are paused during the mandatory closure and will only pick back up after the Governor allows schools to resume. The following timelines are therefore tolled:

  • When a referral for evaluation is made, the LEA must decide whether an evaluation is warranted and notify parents within 14 school days.
  • The LEA must complete an evaluation and convene an IEP meeting within 60 school days following the date the parent signs the written consent.
  • If parents dispute the IEP and file a due process complaint, the filing must occur within 10 school days after the IEP meeting is held in order to maintain the student’s stay-put placement.

Recent guidance from the U.S. Department of Education also recognizes that “[i]f 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.”

However, at this time neither the U.S. Department of Education nor ISBE has provided flexibility to deviate from special education timelines that are calculated using calendar days. Examples of such timelines include:

  • Annual review and triennial evaluation dates are not delayed.
  • The LEA must respond to a request for an IEP meeting within 10 calendar days.
  • The LEA must respond to a request for an IEE within 5 calendar days.

While the task of complying with timelines during the school closure seems daunting, we offer the following tips and guidance:

  • The U.S. Department of Education guidance states that “IEP Teams are not required to meet in person while schools are closed.” Teams can meet via phone and video conferencing.
  • Even flexibility to hold meetings virtually may not make meeting feasible. Team members (including parents) may be working or supervising their children during the school closure. And team members may not have remote access to necessary student records and systems needed to complete an IEP meeting. Communicate proactively with parents and seek agreement to reschedule meetings.
  • Keep an eye out for requests for independent educational evaluations and due process hearings. While these requests are hopefully unlikely during this crisis, you want to provide a timely response if you receive one.
  • Remember that missed deadlines are procedural errors. Given that school is not in session, the likelihood of substantive harm (a denial of FAPE) is low. Make your best effort to hold meetings, stay in compliance, and document your communication with parents and any agreements for flexibility.

We will continue to update you as State and federal guidance is issued and as this unprecedented situation develops.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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