This is the second in a series of blog posts on the Arizona Center for Disability Law’s website about school reopenings during COVID-19. If you haven’t had a chance to read Monday’s post about the impact of recent executive orders from the Arizona Governor’s Office on the return-to-school process, you can check that out here.
Today’s post will provide more information about school reopenings and will highlight some relevant guidance from the Arizona Department of Education (ADE).
Your Child’s IDEA Rights Have Not Changed During COVID-19
Although Arizona public schools were closed from March 16, 2020, through the end of the school year, and Arizona public schools will not be offering in-person learning at the beginning of the 2020-2021 school year, the rights of eligible students under the Individuals with Disabilities Education Act (IDEA) remain the same. Congress has not waived or changed most requirements related to IDEA at this time. Additionally, the U.S. Department of Education made clear in guidance from 2016 that virtual schools have the same responsibility as brick-and-mortar schools to provide students with a free appropriate public education (FAPE).
Therefore, if your child qualifies for special education and related services under IDEA and has an Individualized Education Program (IEP), your child’s public school district or charter school remains responsible for providing your child with FAPE as described in your child’s IEP.
To learn more about your child’s IDEA rights during COVID-19, check out this Frequently Asked Questions document from ADE.
Timelines Are Still Intact
There has not been a change in the timeline requirements under IDEA. For example, if a parent requests an IEP team meeting for their child, that meeting must occur within 45 school days of the parent’s request. Ariz. Admin. Code R7-2-402. That timeline continues to apply. Note that school days are days when school is in session, so timelines measured in school days have been paused while schools have been closed due to COVID and during summer break. However, as soon as school begins for the 2020-2021 school year (even in a distance-learning format), school day timelines restart. Check your child’s school’s website or call an administrator to determine the date of the first school day for the school year 2020-2021.
Learn more about IDEA timeline requirements in this resource from ADE.
IEP Meetings and Amendments
Because educational services generally cannot be safely provided in person at this time, the services in your child’s IEP may need to be provided in a different way, such as through an online platform, over the phone, or through work packets. In some cases, this change in the way services are provided can happen without amending your child’s IEP. In other cases, some changes may need to be made to your child’s IEP, such as including different or additional services or accommodations, to make sure they will receive FAPE through remote learning. ADE has created this resource and this chart to help schools and families decide whether or not a student’s IEP must be amended to provide FAPE in a virtual environment.
Note that an IEP may be amended without a formal IEP meeting if both the parent and the school agree to waive the meeting requirement. If you are not comfortable with changes being made to your child’s IEP without a meeting, tell the school that you will not waive this requirement and you want to meet with the team to discuss before amending the IEP.
Waivers
Congress has not changed the IDEA obligation for schools to provide students with FAPE, even during a pandemic. Therefore, your child continues to be entitled to receive the services and accommodations listed in his/her IEP. Schools should not be asking parents to waive their children’s right to FAPE or services.
Some Arizona schools are asking parents to sign consent forms so that services can be provided virtually, which is different from a waiver of your child’s right to FAPE or related services. A form that is limited to getting consent to provide virtual services may be acceptable. If you don’t understand a form, get legal advice before signing. You may be able to find an attorney who you can retain for legal advice using the Council for Parent Attorneys and Advocates (COPAA) directory or using the Arizona State Bar Association.
Schools may ask parents to sign a waiver releasing schools of liability for COVID-19-related injuries to their children or families. This is because the Arizona School Risk Retention Trust, which insures most public schools in Arizona, is requiring schools to ask parents to sign these forms as part of their COVID-19 insurance policy. The purpose of the form is to inform parents of the risks involved in in-person learning during a pandemic and to limit liability for schools and the Trust. Parents are not required to sign the COVID-19 injury release forms for their children to attend school.
Compensatory Services
If your child cannot be provided FAPE through distance learning options, your child may be entitled to receive compensatory services when it becomes safe to provide in-person services again. We shared three blog posts about this over the summer, as well as a template letter parents can use to request a meeting with their child’s school to discuss compensatory education.
Recently, ADE announced that $5 million of CARES Act funding has been designated for compensatory services in Arizona. At this time, each school district/charter, regardless of size, can apply for up to $3000 to be used for compensatory education. There will be additional opportunities for schools to apply for this funding later in the school year if there is funding left after the first round of applications.
This amount is unlikely to cover the full costs of the compensatory education that each school in Arizona will owe to its students with disabilities. There are other funding sources that schools can also use to cover the costs of compensatory education, such as state funds, IDEA entitlement grants, and the IDEA High Cost Child fund. Remember, lack of school funding or resources is not a valid excuse to deny a child FAPE. If you believe your child’s school has not made an appropriate or adequate offer of compensatory education in light of what your child has been denied during school closures, consider exercising your dispute resolution options.
School Meals
Many Arizona students and families rely on school meal programs. With some exceptions, these meals will continue to be available this school year, even for students who choose to engage in full-time distance learning. ADE has created a Frequently Asked Questions document for families about how to access school meals during school closures and distance learning.
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