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March 23, 2020

Important Information for Charter Schools during the COVID-19 Pandemic

Important information for Conrad O’Brien charter school clients:

Most importantly, take a deep breath. Remember that the COVID-19 pandemic is a new situation for everyone.  

This update will focus on special education. We will continue to communicate on this and other issues over the next days and weeks, so please check your email and the Conrad O’Brien website for updates.  

The most important thing is to make an effort to educate all students at this time, including doing what is possible given current constraints to support special education students. On March 21, 2020, the United States Department of Education made it abundantly clear that the difficulties in providing certain services to special needs students should not act as reason to not provide any continuity of education services at all.   

The Individuals with Disabilities Education Act and Section 504 of the Rehabilitation Act do not address as to what happens during a nationwide and global pandemic such as we are facing now. Previously, the United States Department of Education and the Pennsylvania Department of Education issued guidance which left many public school educators adrift, questioning if they should provide educational services at all if they could not provide educational opportunities to those students requiring equity (such as students with disabilities, economically disadvantaged and EL populations). Coupled in those initial guidances was the notion that if education stopped, special education stopped. For example, there was significant backlash against the School District of Philadelphia, which took a position which it thought was consistent with the state and federal COVID-19 guidance. 

It is our recommendation that exempting students from education and making no attempt to provide educational opportunities to all students is below legal standards and educational best practices. Additionally, it may be a key component to any claims (even if considered unlikely) by districts of residence that your school is not entitled to the special education per pupil allocation.

In this unprecedented situation, special education services may actually be based on a student’s specific situation and their needs. As such, a school can plan for and collaboratively develop with the IEP Team compensatory services for those services that are impossible to implement under the emergency declaration. This position is supported by USDOE (in its March 21, 2020 Supplemental Fact Sheet) which states:

It is important to emphasize that 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. As mentioned above, FAPE may be provided consistent with the need to protect the health and safety of students with disabilities and those individuals providing special education and related services to students. Where, due to the global pandemic and resulting closures of schools, there has been an inevitable delay in providing services – or even making decisions about how to provide services - IEP teams  … must make an individualized determination whether and to what extent compensatory services may be needed when schools resume normal operations. 

Important Actions:
1.    Remember your independence.   As a charter school and as your own LEA, you can make your own decisions; you are not bound by what your local school district decides to do – or in the cases of some school districts – not to do. That being said, consider sending an update to your authorizer on how you are implementing education. This will ensure that at some point in the future if your authorizer decides to criticize your implementation or object to funding, you will be able to demonstrate that your charter school was proactive and was educating children.  

2.    Stop reacting, start planning.   Schools are likely to be closed for longer than two weeks. Assume that school buildings will not be open for at least 8 weeks and plan accordingly.  For special education purposes, this means assessing the needs of special education populace, reaching out individually to families with students with disabilities to determine both needs, wants and practicalities. For all families, this means assessing who is home with the student, the technological capabilities of the student’s home, and your school team’s capabilities. Distance learning can take place synchronously, asynchronously or a combination of both.  

3.    Provide remote related services.   To the extent the school can provide a related service listed in an IEP remotely, schools should design a plan to provide that service. Schools and parents must realize that some related services cannot be provided since it would require in-person visits to the student’s home which violates the current social distancing requirements. However, even though you can’t meet every requirement perfectly, it is important to do what is possible remotely.

4.    Do the best that you can.   It is vital for schools to remember that students with disabilities are now – with their parents – trying to navigate and adapt to the situation and any supports are welcome not only for educational continuity but also from a humanistic perspective. For example, think of autistic students for whom routine is a vital component who are now adapting to not seeing their teachers or their classrooms.   

5.    Be flexible.   Flexibility needs to be a focus – not only for schools but for parents and the special education advocacy community.    

6.    Communicate, communicate, communicate.   Reach out to all parents of special education students. Assess what they need. Ask how the school can support them during this difficult time. Communicate that you’re trying to figure out a way to provide for students’ needs. Tell them that you don’t know if you can fully implement the IEP at this time, but you are doing what you can. Assure them you will continue to communicate over the coming days and weeks. 

7.    Document, document, document.   Document all of your efforts as well as all of your communication with parents. This may mean keeping a log of all efforts to reach out to parents, how such communication was attempted, and what was discussed. Additionally, this will also mean special education compliance monitoring as well as ‘distance’ progress monitoring.  

8.    Amendment versus change of placement.   Since the IDEA under Section 300.324(a)(4)(i), parent(s) and the LEA may agree to modifications of a student’s current IEP without a meeting, we recommend that LEAs amend IEPs regarding any distance learning rather than issuing a Notice of Recommended Placement (NOREP), the rejection of which would trigger ‘stay put’ protections which are impossible to implement due to the social distancing mandates. These changes can be made via email or phone call. Please be sure when communicating with parents that the amendment process is to address the current COVID-19 pandemic and that the IEP developed by the team will be the operative document once school is back open. If you are not able to get this administrative part completed, remember it is more important to follow the spirit of the law, focusing your efforts on educating the student rather than perfectly documenting the effort.   

9.    Your IEP Team Meeting Can Take Place Virtually.   Be creative on how you ensure that team members sign in – including asking parents to email that they were in attendance or have them send the sign-in sheet to you via first-class mail.  

10.    Secure agreements regarding waivers for timeline compliance.   To the extent that you are in the midst of certain IDEA deadlines (the 60-day evaluation timeline for example), it will be impossible to meet such deadline due to social distancing. Please attempt to secure a waiver of the strict compliance with the IDEA guidelines from parents in light of the pandemic.  If you require a sample waiver, please contact us.

As educators, you know that special education has strict timelines. We believe we will continue to receive further guidance from the U.S. Department of Education (or even Congressional action) about those timelines, but what we know to date is that effort, flexibility, and communication are key. 

Most parents understand that this pandemic is unprecedented, and that schools are doing their best to respond. Meeting the needs of special education children at home presents a challenge for families and schools play a unique role in supporting those students. Many in the public education realm are fearful – rightly so – of compensatory education lawsuits in a time when resources are uncertain.  In our view, we hope that special education advocates recognize that it is far better to attempt to provide services (even if imperfectly) than to make no attempt at all.  
We at Conrad O’Brien are monitoring this ever-changing situation and are available to answer questions by email and phone. Please continue to look for updates from us over the coming days and weeks.  

Further resources are available at the National Center for Special Education in Charter Schools.