The MLO Minute: By John Goldsborough, Esq.
The current public health crisis surrounding COVID-19 has ground most public school functions to a halt. Hundreds of school districts across Pennsylvania and Delaware are assessing their capacity to continue to provide general and special academic services, as well as whether a variety of essential special education planning functions can continue. Unfortunately, some districts have taken the position that all education, even including on the internet, will no longer be provided. This posture is neither necessary nor, in some cases, compliant with federal and state law, and it presents advocacy challenges for those of us who represent children with special needs. Let’s look at the two most critical special education documents, the Evaluation Report (ER) and the Individualized Education Program (IEP).
A comprehensive ER is a necessary pre-requisite to creating an appropriate IEP. The report will generally consist of standardized testing of intelligence, achievement, executive functioning, and memory. Where appropriate, it will also explore issues such as behavior, social/emotional functioning, speech/language, and physical functioning. However, in some instances, an ER can be prepared through a review of records, including past testing and report cards, plus interviews with teachers and the use of rating scales completed by teachers, parents, and the student himself/herself. Such methods can often be adapted to the current health crisis and conducted through the internet and telephone. Since reports can be produced in a variety of ways depending upon the circumstances at hand, it is not essential in every case to conduct individualized testing of a student, or to undertake classroom observations. Moreover, even if individual testing and classroom observations are essential in a particular case, an ER could still be created on an interim basis to allow an interim or even final IEP to be developed and thus be in place upon the resumption of face-to-face, in-person instruction, with additional evaluative measures to be completed at that time, when the current health crisis ends. These creative approaches to creating ERs that will lead to developing IEPs should be considered and can be used as soon as possible, even on an interim basis, in light of the health emergency.
Similarly, the current health crisis need not end work on the development of appropriate IEPs, whether for students whose IEPs were being prepared when educational programming ceased due to the health crisis, or for those whose IEPs will expire or have expired during the closure of schools. IEPs can still be developed via telephone conferences, and parties need not be present in a single room to draft the document. Similarly, with parental consent, a draft IEP can be circulated before a telephone conference call, so that all individuals view the document simultaneously while offering suggestions, with the final document then emailed or mailed to parents for review and approval. The IEP can, if necessary, serve as an interim document to address whatever instruction should be provided during this period, when typical school activities are on hiatus, or, in a district in which no school activities whatsoever are occurring (which will be the subject of another MLO Minute), to be available to implement immediately upon the resumption of normal school functions.
The current COVID-19 health crisis has created a wide variety of challenges for families and school officials. But not all challenges are insurmountable. Our attorneys and staff continue to work diligently for you from remote locations and are fully prepared during this health crisis to utilize all of our resources – including phone conferences, remote videoconferences, remote network computer work, and electronic communications — to assist our clients in continuing to promote and support the educational development of their children.