School closures related to COVID-19 have impacted all students, particularly students with disabilities. ACDL has received multiple calls from families of students with disabilities who have questions about their child’s right to be evaluated for special education while schools are closed as a result of COVID-19. This blog post is intended to provide families with general legal information about special education evaluations during school closures.
EVALUATIONS AND ASSESSMENTS
The most often asked question is whether evaluations can be provided while schools are closed due to COVID-19. The answer is yes, evaluations can be completed even during school closures.
Assessment data. Teams may agree that assessment data is not needed to complete an evaluation. Evaluations should rely on data from a variety of sources, such as grades, work samples, teacher observations, parent observations, past school evaluations, and outside evaluation reports (such as from a medical doctor, behavioral health provider, etc.). A student’s team may be able to make an eligibility determination based on a review of existing data, without needing to conduct new in-person assessments.
Status of in-person assessments. There is no statewide rule on whether in-person assessments can be administered at this time. Arizona’s stay-at-home order is now lifted, and some businesses are starting to reopen with precautionary safety measures in place. It is possible that your child’s school will offer to conduct an in-person assessment of your child while implementing safety measures (both student and evaluator wearing masks, staying at least 6 feet apart, etc.). The school and parent will need to decide together whether an in-person assessment is safe and feasible to conduct at this time.
Alternatives to in-person assessment. If in-person assessments are not safe or feasible, teams should consider whether assessments can be conducted remotely. For example, while it may not be safe for a speech therapist to conduct an in-person speech/language assessment, the therapist may be able to conduct an assessment using videoconferencing technology. Evaluators will need to determine whether they are able to get valid results and collect reliable data using this methodology, and in some cases, remote assessment may not be appropriate or feasible. However, it is an option the evaluation team should consider.
Timelines. Families of children with disabilities also want to know the deadline by which schools must complete evaluations.
The Individuals with Disabilities Education Act (IDEA) measures some timelines using school days and other timelines using calendar days. According to the Arizona Department of Education, when schools are closed as a result of COVID-19, no school days are occurring, so timelines that are measured in school days stop running, while timelines measured in calendar days continue to run. Once school resumes, the school day timelines will start running again.
From the time a school receives a parent’s written request for a special education evaluation (initial evaluation or reevaluation), the school has 15 school days to respond to that request by either beginning the evaluation with a Review of Existing Data (RED) meeting or issuing a Prior Written Notice (PWN) document refusing to evaluate and explaining why.
At a RED meeting, the team decides if there is enough existing data to determine if a student is eligible for special education or if more data is needed. If the team agrees more data needs to be collected, the school will ask parents to sign an evaluation consent form. The school then has 60 calendar days to complete the evaluation and hold an eligibility determination meeting (often called a Multidisciplinary Evaluation Team meeting, or MET).
Arizona law allows schools to request one 30 calendar day extension to complete an evaluation if it is in the best interest of the child and the school and parents agree to the extension in writing.
This means that at most, a school can take 90 calendar days from the date it receives the parent’s informed written consent to complete an evaluation and hold a MET meeting to determine eligibility.
COVID-19 EVALUATION SCENARIOS AND SELF-ADVOCACY OPTIONS
- If you requested an evaluation for your child during COVID-19 school closure or summer break, the school is not legally required to respond to your request until schools have reopened and 15 school days have passed.
- If you requested an evaluation before schools closed due to COVID-19, and more than 15 school days passed without a response from the school, the school is out of compliance with IDEA. You may wish to follow up with a district or charter special education administrator about the status, and if you cannot resolve the matter, consider filing a state administrative complaint with the Arizona Department of Education.
- If you requested an evaluation before schools closed due to COVID-19, and the school responded by agreeing that more data was needed and you provided informed written consent to evaluate, the school has 60 calendar days to conduct the evaluation and hold an IEP meeting to determine your child’s eligibility. If more than 60 (or, if an extension was obtained, 90) calendar days have passed since you provided informed written consent to evaluate, and your student’s school has not held a MET meeting to determine eligibility, you may wish to follow up with a district or charter special education administrator, and if you cannot resolve the matter, consider filing a state administrative complaint with the Arizona Department of Education.
- If you requested an evaluation before schools closed due to COVID-19, and the school responded by agreeing that more data was needed but stated it will wait to get your informed written consent to evaluate until schools reopen, the school may be out of compliance with IDEA. In some cases, where teams believe a student needs in-person assessments in order to be accurately evaluated, schools have been asking parents to wait to sign evaluation consent forms until schools reopen in the fall. If a school believes it will not be able to safely administer an in-person assessment in the next 60-90 calendar days, it may withhold evaluation consent forms from parents so that the evaluation timeline will not begin.
The Arizona Department of Education has addressed this scenario in its online guidance to schools:
Q: May a district/charter delay obtaining consent to evaluate a student until school resumes even though the [team] convened and determined the need for additional assessment?
A: The IDEA does not specify the time period between the [team] determination that additional data is needed and a parent or guardian signing the consent form, however, the time period must be reasonable. The signing of the consent form triggers the 60-day period by which a [school/charter] must meet to determine eligibility. Delaying consent to avoid beginning the assessment timeline is not endorsed by [the Arizona Department of Education]. Please consult your [school/charter] legal counsel, as delaying obtaining consent to collect additional data may result in a denial of [a student’s right to a free and appropriate public education], in the event the child is found eligible, and the student may be owed compensatory education for the delay.
If your child’s school asked you to wait to sign consent forms until school reopens to avoid triggering the evaluation timeline, the delay in evaluating may result in a denial of a free appropriate public education for your child. If, once schools reopen, your child is found eligible for special education under IDEA, you should consider asking the school to provide your child with compensatory education for what he/she was denied while the school delayed the evaluation. If the school refuses to provide compensatory education, consider filing a state administrative complaint with the Arizona Department of Education.
- If you requested an evaluation before schools closed due to COVID-19, and the school agreed to evaluate and managed to complete an evaluation and found your student eligible, the school must meet to develop an IEP for your child within 30 calendar days of the determination of eligibility. This means, even while schools are closed, the IEP team must convene (can be digitally or over the phone) to write an IEP. The school must begin implementing the IEP as soon as it is written. While schools are closed due to COVID-19, the implementation of the IEP may look different than it normally would when schools are open—for example, the student may be provided the special education and related services that are in the IEP via an online platform, rather than in-person. If it is not safe or feasible to implement an IEP for a student and provide a free appropriate public education, then the team should consider compensatory education for the student once it is safe for in-person services to resume.
Resources
If you have questions about your student’s special education assessment during COVID-19 school closures, try talking with the school’s special education administrators first. You can also consider contacting the Arizona Department of Education’s Exceptional Student Services for guidance. If you think you need individualized advocacy or legal help, you may complete an intake with the Arizona Center for Disability Law.
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