THE RIGHTS OF OUR CHILDREN DURING COVID-19 LOCKDOWN

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THE RIGHTS OF OUR CHILDREN DURING COVID-19 LOCKDOWN

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NAVLAW is striving to keep you informed about the needs of students with disabilities during this unprecedented time. This is one of our periodic updates.

(What we know as of April 8, 2020)

The Rights of Students to Special Education and Related Services During the Time of School Building Closures Due to COVID-19 Lockdown

If the District/school is providing educational services to general education students, it must provide equal access to services and supports to students with disabilities. Providing special education students with equal access to education through online or telephone support in many cases is problematic for the student. Yet, we are faced with health concerns that are keeping necessary face to face services from being provided. There is no currently effective way of which we are aware to immediately force face to face services when stay at home orders are in effect.

If, however, no services are being provided or your child is not benefitting from the service being provided, to protect the potential for compensatory relief, please document the lack of services or the types of services provided or attempted to be provided and your child’s ability to benefit from those services. Keep track of the dates and times services should have been provided (per their IEP) so that when schools reopen you can ask the school for compensatory services to make up for the time that your child was not receiving appropriate educational services. (Current directives from the Federal Government provide that the provision of compensatory services will be determined on a case by case basis when school sites reopen). It is extremely important that parents document which IEP services were not provided or provided in a manner that was not accessible to the child.

California SB 117 and Its Negative Impact on Our Children

SB 117 is a new law signed by the Governor on March 17, 2020 and done so without any ability for the community to provide input. It is a sign that parents need to be in touch with your State Legislators urging them that special education not be put on hold in California. What SB 117 does is “toll” certain timelines applicable to special education. What does this mean exactly? The following rights have been extended by this law for the length of time schools are closed for COVID-19:

  1. The right to receive an assessment plan within 15 days from your request for an assessment;
  2. Your right to receive copies of your child’s school records within 5 business days of your request; the right to have a previous school send records to a new school;
  3. The testing window to conduct California Assessment of Student Performance and Progress, English Language Learner Assessment and Physical Performance Tests;
  4. The timelines imposed for Uniform Complaint Procedures in both the Education Code and implementing regulations.

It is very important to note that SB 117 is a state law and does not waive any of the legal timelines set forth in the Individuals with Disabilities Education Act (IDEA). It is also important to note that it overreaches since school districts are operating remotely and conducting many meetings and services remotely. It is quite troubling that this was passed at the request of school districts and without any input from the community. It is VITAL that you let your state legislators know they must protect the rights of children with disabilities.

Individualized Education Program (IEP) Meetings Should Be Held

Unless the United States Congress acts to eliminate this provision of IDEA, IEP meetings should continue to be held. As this is written, the IEP timelines are still in effect and local school districts should be organizing to hold virtual meetings. They should be convened within 30 days from the date a parent requests in writing that an IEP be held.

Current IDEA provisions explicitly permit IEP meetings to be held via telephone, video conferencing and even email exchanges. Some districts are not holding the meetings believing that their lobbying efforts will be successful, and they will convince either or both of the State Legislature or Congress to somehow do away with timely IEP meetings. Again, your voices are necessary to keep this from taking place.

Assessments in the Time of COVID-19

Under California’s SB117, the 15 day timeline for providing an assessment plan is extended and considers the days that schools are closed due to COVID-19 to be days between regular school sessions in excess of five days and therefore, this timeline would begin to run only when regular school sessions resume. So technically, if Districts/schools are not required to provide an assessment plan then they won’t be required to conduct an assessment until the assessment plan is signed by the parent and returned to the school site once school opens. The 15 day timeline is unique to California and the Federal timelines under IDEA for assessments are still in effect, therefore assessments should be conducted. However, with social distancing and school building closures in effect, any assessments requiring in-person interaction (most assessments) will likely need to be rescheduled.

It should be noted that if your child’s triennial reassessment is due, the District/school could legally decide to conduct a review of existing records instead of a whole new assessment. It is, again, extremely important that you urge assessments that do not need to be done in person to continue and assessments that can be effectively done by record review to be used for IEP meetings. Assessments will, of course, be necessary for many children when schools reopen in order to determine any level of regression and need for compensatory services.

Due Process Continues

The California Office of Administrative Hearings (OAH) is still operating and receiving Due Process complaints. They are scheduling mediations which are being done virtually. As of this writing, it is unclear when hearings will resume but we are informed they are working on a virtual hearing process.

ONGOING WORK

Everyone at NAVLAW remains actively engaged in our work on behalf of the community we serve. Our personnel continue to be available to conduct virtual intake meetings to assist you with educational and regional center concerns during this difficult time. If you need help or wish to contact us, please visit our website at nawlaw.net, fill out the intake form, and we will schedule a meeting with one of our attorneys.

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