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Special Education Guidance for COVID-19


Coronavirus (COVID-19) Main Web Page

Providing In-Person Specialized Supports and Services to Students with Disabilities

New Guidance (Posted 30-Sept-2020)

Is a Local Educational Agency (LEA) permitted to offer in-person supports and services to small groups of students with disabilities?

Yes. The California Department of Public Health (CDPH)released guidance on August 25, 2020, permitting the provision of in-person targeted, specialized support and services in stable cohorts when the school is able to satisfy all of the conditions detailed in CDPH’s guidance related to cohorts. The guidance provides uniform messaging regarding the required health and safety practices needed to prevent the spread of COVID-19 across settings, such as small group learning for students with disabilities and district or school “hubs” for distance learning and childcare. The CDPH guidance related to cohorts is available on the CDPH website at https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/small-groups-child-youth.aspx External link opens in new window or tab. .

In addition, the CDPH released a set of frequently asked questions (FAQs) on how this guidance applies to the provision of school-based targeted, specialized support for schools that are not permitted to reopen based on current state public health directives. The FAQ is available on the CDPH website at https://files.covid19.ca.gov/pdf/guidance-schools-cohort-FAQ.pdf External link opens in new window or tab. .

Does the CDPH guidance related to cohorts apply to students age 18-22 participating in post-secondary programs that are provided through the K-12 school setting?

Yes. LEAs may serve small cohorts of students with disabilities ages 18-22 consistent with the CDPH guidance.

Does an LEA need to have received an elementary school waiver through the local public health office before offering in-person supports and services to small groups, consistent with the CDPH guidance related to cohorts?

No. The August 25, 2020 CDPH FAQ states “[t]he Cohorting Guidance applies to schools that cannot reopen for in-person instruction pursuant to the July 17 Framework, including elementary schools in those jurisdictions that have not received an elementary school waiver through the local public health office. Under these circumstances, school officials should develop and implement plans in collaboration with local health officials and school-based staff (including, if applicable, organized labor), but are not required to receive express approval from the local health department. They are, however, required to adhere to any applicable, more restrictive local public health directive.

Distance Learning

Are there new requirements related to Individualized Education Programs (IEP) and distance learning?

Yes. On June 29, 2020, Governor Newsom signed the 2020 Budget Act and accompanying budget-implementing legislation, including Senate Bill (SB) 98 (Chapter 24, Statutes of 2020). SB 98 included notable changes related to special education and distance learning. The CDE posted related guidance on the CDE website at https://www.cde.ca.gov/sp/se/lr/om071520.asp.

SB 98, Section 66, amended Section 56345 of the Education Code (EC) to require that Individualized Education Programs (IEP) include a description of the means by which the IEP will be provided under emergency conditions, in which instruction or services, or both, cannot be provided to the pupil either at the school or in person for more than 10 school days. This description must be included in the development of each initial IEP or addressed during the regularly scheduled revision of an IEP (e.g., annual IEP), and must take public health orders into account.

Where can I find more information about the requirements for distance learning and instructional time?

The CDE has established a webpage dedicated to providing guidance and resources for teachers and families in K–12 schools regarding high quality distance learning. The CDE’s distance learning webpage can be accessed on the CDE’s website at https://www.cde.ca.gov/ci/cr/dl/index.asp

In addition, the CDE has developed a frequently asked questions (FAQ) webpage addressing principal apportionment, instructional time, attendance accounting, attendance reporting and the Form J-13A for fiscal year (FY) 2020–21. The FAQ can be accessed on the CDE website at https://www.cde.ca.gov/fg/aa/pa/pafaqs.asp.

Do the requirements for distance learning and instructional minutes in the FY 2020-21 school year impact Specialized Academic Instruction on a student’s IEP?

Specialized Academic Instruction (SAI) in a student’s IEP (including minutes), like all aspects of the IEP, is determined by the IEP team. SAI is an instructional service and individualized based on student need. LEAs are required to implement IEPs.

Description of How the IEP Will be Provided Under Emergency Conditions

What are considered “emergency conditions”?

EC 46392 outlines what constitutes “emergency conditions” and includes: fire, flood, impassable roads, epidemic, earthquake, the imminence of a major safety hazard as determined by the local law enforcement agency, a strike involving transportation services to pupils provided by a non-school entity, and an order provided for in EC 41422.

Is the emergency conditions description part of the IEP or a separate document?

The description of the means by which the IEP will be provided under emergency conditions must be part of the IEP. SB 98 amended section 56345 of California Education Code, and added the requirement that an IEP include a description of the means by which the IEP will be provided under emergency conditions, effective July 1, 2020. It applies to the development of an initial IEP or the next regularly scheduled revision of the IEP (i.e. annual IEP) (EC Section 56345(a)(9)(B)). Because all students must have an annual IEP, pursuant 34 C.F.R. 300.324(b)(1), all IEPs in the state should include this description by June 30, 2021.

Must the parent or student consent to the description required by EC 56345(a)(9)?

Yes. As a required component of the IEP, the description of the means by which the IEP will be provided under emergency conditions must be adopted by the IEP team at an IEP team meeting or through an amendment to the IEP. Parents/students are required members of the IEP team and thus will be involved in the development of this description through the IEP process. The LEA must obtain consent to the IEP consistent with applicable state and federal law.

The United States Department of Education Office of Special Education Programs (OSEP) issued a Question and Answer (Q & A) document on June 30, 2020 in response to inquiries concerning implementation of the Individuals with Disabilities Education Act (IDEA) Part B procedural safeguards in the current COVID-19 environment, including obtaining parental consent. In that document, OSEP encourages LEAs to ensure “that parents are fully informed of how their child’s special education and related services needs are addressed during remote learning” (https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/qa-procedural-safeguards-idea-part-b-06-30-2020.pdf External link opens in new window or tab.).

How does the IEP requirement for a description of the means by which the IEP will be provided under emergency conditions impact the offer of a Free Appropriate Public Education (FAPE)?

The description of the means by which an IEP will be provided under emergency conditions is an element of the overall offer of FAPE, and should help an LEA to plan for how to address the needs of an individual student in an emergency.

What if the description of the means by which an IEP will be provided under emergency conditions inadequately addresses or anticipates the needs of the student in the event of an emergency?

IEP teams are required to meet when a student demonstrates a lack of expected progress (34 C.F.R. 300.324 (b)(1)(ii)). Additionally, the parent or the teacher may request an IEP meeting at any time (EC 56343) to discuss and address any concerns with student access including a lack of resources, or ineffectiveness of the means by which the IEP is being provided under emergency conditions.

Teachers and parents are encouraged to work together to ensure that a student is able to access instruction and that the delivery of instruction is effective. The student’s IEP can be changed or amended at any time with agreement from both the parents and the LEA.

Does an LEA need to wait 10 days before implementing the description of how the IEP will be implemented under emergency conditions IEP?

No. If the LEA has good reason to believe that, due to emergency conditions as described in EC 46392, instruction or services, or both, cannot be provided to the pupil either at the school or in person for more than 10 school days, the LEA may implement the provisions outlined in the description before 10 school days have elapsed.

Should the description of the means by which the IEP will be provided under emergency conditions required by EC 56345(a)(9) include provisions for how the LEA will deliver feedback and information to parents regarding a student’s learning progress during the emergency closure?

While EC 56345(a)(9) does not specifically require including plans for delivering feedback and information regarding a student’s progress, communication and collaboration between the local educational agency (LEA) and parent are vital to ensure educational progress. In addition, EC Section 43504(g) requires that, during the 20-21 school year, each school shall regularly communicate with parents and guardians regarding a pupil’s academic progress.

Special Education Assessments

Must LEAs continue to conduct special education assessments while providing distance learning?

Yes. The U.S. Department of Education (USDOE) has not waived the requirement for LEAs to conduct a full and individual initial evaluation for a student suspected of having a disability, nor has the USDOE waived requirements relating to triennial assessments. Additionally, 34 C.F.R. §§ 300.101(b) and 300.124(b) are still in effect and require that an IEP or individual family service plan (IFSP) is developed by the third birthday of a child participating in Part C programs and who will participate in Part B preschool-age programs. The USDOE has encouraged LEAs to work with parents to reach mutually agreeable extensions of time, as appropriate, if the LEA or parent feels additional time is needed.

Can special education assessments be conducted in-person at this time?

Yes. Current guidance from the California Department of Public Health and the CDE does not expressly prohibit in-person assessments. Further, the CDPH’s “Cohort” Guidance of August 25, 2020 permits in-person instruction and services, including assessments, if done in compliance with the Guidance, or if an elementary school has received a waiver of the school closure mandate from its local public health officer in accordance with the July 17, 2020 Framework for re-opening schools.

As stated in the CDE’s April 9 2020 updated special education guidance (https://www.cde.ca.gov/ls/he/hn/specialedcovid19guidance.asp), any in-person services or supports 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”. Each LEA will need to monitor current health conditions and determine appropriate measures regarding in-person assessments. Some assessments, or components of assessments, may be conducted virtually, and, in some cases, existing data may be used. As with all assessments, the LEA can work together with parents to determine which assessments are necessary and appropriate in order to evaluate eligibility for special education services.

The California Association of School Psychologists (CASP) has developed several resources related to assessments and COVID-19, including considerations and recommendations for conducting in-person assessments. Those resources can be accessed by visiting the CASP website at https://casponline.org/about-casp/publications/covid-19-resources/ External link opens in new window or tab. .

Are the special education timeline waiver provisions included in Section 8 of Senate Bill 117 (Chapter 3, Statutes of 2020) still in place?

No. On September 18, 2020, the Governor approved Senate Bill (SB) 820 (Chapter 110, Statutes of 2020). Section 56 of SB 820 rendered SB 117, Section 8 inoperative on July 1, 2020. LEAs must adhere to all state and federal special education timelines, including those related to assessments and access to educational records.

Supporting Social-Emotional Wellness

If students are unable to meaningfully engage in distance learning due to social-emotional and/or mental health needs, what support should the LEA provide? What are the state and federal mandates?

Students with disabilities are required to have educational programs that are designed to meet their specific individual needs. IEP teams are required to monitor students for educational progress and revise the IEP for any lack of expected progress toward the student’s annual goals and in the general education curriculum (34 C.F.R 300.324 (b)(1)(ii)). Additionally, the IEP team for a student with disabilities whose behavior impedes learning is required to consider the use of positive behavioral interventions and supports (34 C.F.R 300.324 (a)(2)(i)).

In addition, EC 43503 (b) requires that distance learning include several components, including:

(3) Academic and other supports designed to address the needs of pupils who are not performing at grade level, or need support in other areas, such as . . . pupils with exceptional needs . . .

(4) Special education, related services, and any other services required by a pupil’s individualized education program pursuant to Section 56341, including the requirements of subparagraph (A) of paragraph (9) of subdivision (a) of Section 56345, with accommodations necessary to ensure that individualized education program can be executed in a distance learning environment.

Further, an LEA’s learning continuity and attendance plan required for the 20-21 school year must outline what additional supports will be provided for pupils with exceptional needs served across the full continuum of placements during the period in which distance learning is provided (EC 43509(a)(1)(A), (e), (f)(1)(B)(vi)).

In the Spring of 2020, the CDE convened the Distance Learning Innovative Solutions Workgroup to assist educators and families across the state with distance learning by developing solutions and resources that can be used to help support students with disabilities. The Innovative Solutions Workgroup created several resource documents located on the Distance Learning Innovations for Special Education webpage located at https://www.sipinclusion.org/distance-learning-resources/ External link opens in new window or tab.. Available resources on the webpage can be filtered by “Behavior and Mental Health”, which will provide educators and parents with information on how to address student social-emotional and mental health needs in the home during distance learning. Additionally, the webpage has a resource library that can be searched using keywords, including topics like “student engagement” to provide educators and parents with resources for maintaining student engagement and access to distance learning.

What is the LEA’s responsibility to provide educationally related mental health services (ERMHS) services in the IEP while the LEA is providing distance learning?

Supporting social-emotional and mental health needs of students is critical during this time. EC 43503 (b)(4) requires that distance learning include “special education, related services, and any other services required by a pupil’s individualized education program pursuant to Section 56341, including the requirements of subparagraph (A) of paragraph (9) of subdivision (a) of Section 56345, with accommodations necessary to ensure that individualized education program can be executed in a distance learning environment.” Therefore, the LEA should ensure that the IEP, including ERMHS when required by the IEP, can be executed in a distance learning environment. With that said, LEA’s may not be able to provide all services in the same manner that they are typically provided during this COVID-19 pandemic.

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.

Updated Resources

Has the USDOE issued additional guidance since April 2020?

Yes. On September 28, 2020, the USDOE’s OSEP released a Question and Answer (Q&A) document in response to inquiries concerning implementation of the IDEA Part B provision of services in the current COVID-19 environment. The document can be accessed on the USDOE website at https://sites.ed.gov/idea/idea-files/part-b-implementation-idea-provision-services-current-covid-19-environment-qa-document-sept-28-2020/ External link opens in new window or tab. .

Additionally, on September 28, 2020, the USDOE’s Office of Civil Rights issued a COVID-19-related technical assistance document to assist K-12 schools in meeting their obligations under Federal Civil Rights Laws. The document can be accessed on the USDOE website at https://www2.ed.gov/about/offices/list/ocr/docs/qa-covid-20200928.pdf External link opens in new window or tab. .

On June 25, 2020, the USDOE’s OSEP issued a Question and Answer (Q & A) document in response to inquiries concerning implementation of the IDEA Part B use of funds in the current COVID-19 environment. The document can be accessed on the USDOE website at https://sites.ed.gov/idea/files/qa-part-b-use-of-funds-06-25-2020.pdf External link opens in new window or tab. .

On June 26, 2020, the USDOE's OSEP issued a Q & A document in response to inquiries concerning flexibility on IDEA Part B fiscal requirements in the current COVID-19 environment. The document can be accessed on the USDOE website at https://sites.ed.gov/idea/files/qa-fiscal-flexibilities-idea-part-b-06-26-2020.pdf External link opens in new window or tab. .

On June 30, 2020, the USDOE's OSEP issued a Q & A document in response to inquiries concerning implementation of the IDEA Part B procedural safeguards in the current COVID-19 environment. The document can be accessed on the USDOE website at https://sites.ed.gov/idea/files/qa-procedural-safeguards-idea-part-b-06-30-2020.pdf External link opens in new window or tab. .

To review all of these documents, as well as other Q & A documents that OSEP has provided related to COVID-19, please visit the USDOE’s website at https://sites.ed.gov/idea/topic-areas/#COVID-19 External link opens in new window or tab. .

Are there updated resources to support parents, students, families, and LEAs during this time?

Yes. In Spring of 2020, the CDE hosted five webinars on supporting students with disabilities in distance learning, which are archived on the CDE website at https://www.cde.ca.gov/ls/he/hn/covid19webinars.asp External link opens in new window or tab. . Webinar topics included:

  • Highlighting and sharing best practices from LEAs and educators across the state
  • Discussing critical parent partnerships and outlining resources for parents of students with disabilities
  • Addressing critical transitions in special education via distance learning: preschool to K-12 and post-secondary transition
  • Addressing the behavioral and mental health needs of students
  • Highlighting strategies to serve students with disabilities that have unique, extensive support needs

Additionally, the CDE worked to build a resource library through the convening of the Distance Learning Innovative Solutions Workgroup comprised of over 130 educators, administrators, services providers, parents, advocates, etc., to address a variety of topics related to special education and distance learning. The resource library can be accessed on the Distance Learning Innovations for Special Education webpage at https://www.sipinclusion.org/distance-learning-resources/ External link opens in new window or tab. .

The CDE has also been working with Special Education Local Plan Area leads within the state System of Support to develop targeted resources for distance learning. Those resources can be accessed on the following websites:

The USDOE OSEP has established a webpage for continuity of learning during COVID-19 that offers information, tools, and resources to help educators, parents and families, and related service providers meet the educational, behavioral, and emotional needs of children and youth with disabilities through remote and virtual learning. The OSEP continuity of learning during COVID-19 webpage can be accessed at https://osepideasthatwork.org/continuity-learning-during-covid-19 External link opens in new window or tab. .

Created specifically for parents, the IRIS Center offers a new, user-friendly module “Parents: Supporting Learning During the COVID-19 Pandemic” with practical tools and easy-to-implement strategies to help children learn at home during COVID-19. This multi-media learning module covers practical tips to get children ready to learn, strategies for reading and mathematics instruction, support for children's social and emotional well-being, and considerations for the parents of struggling learners and students with disabilities, among other topics. The IRIS Center is supported by the USDOE OSEP and located at Vanderbilt University’s Peabody College. The module can be access on the IRIS Center website at https://iris.peabody.vanderbilt.edu/module/c19/ External link opens in new window or tab. .

Earlier Guidance

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.


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. However, giventhe complex, unprecedented challenges LEAs are experiencing from the threat of COVID-19,the CDE is committed to a reasonable approach to compliance monitoring that accounts for the exceptional circumstances facing the state.

    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?

 

 

Questions:   California Department of Education | 916-319-0800
Last Reviewed: Wednesday, September 30, 2020
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