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On April 9th, ED311 and TCASE presented the first webinar in our series of bonus content for the Spring Conference on Special Education Law.  Dianna Bowen of Thompson & Horton LLP, Heather Rutland of Eichelbaum Wardell Hansen Powell & Muñoz PC, and Jose Martín of Richards Lindsay & Martín held a round-robin discussion on current issues of compliance during this era of school closures due to COVID-19.

The following was provided to us by Dianna Bowen of the firm Thompson & Horton LLP. Read on for the attorneys’ responses to the audience’s questions.

QUESTIONS FROM ATTENDEES

1.   Doesn’t legal framework state that a change of placement cannot be made through an IEP Amendment?

  1. The IDEA does not limit the IEP amendment option. The only requirement is that an IEP amendment cannot take the place of an annual ARD meeting. Legally, you can do a change of placement with an IEP amendment if the parent agrees and if is after the annual ARD meeting for the school year.
  2. In addition, just because the services are being done virtually, does not mean that the child is in a different placement. For example, if they are in mainstream with inclusion support, they are still in mainstream with inclusion support, they just may not be getting that support in-person.

2.   What happens if we are trying to offer the services (e.g. teletherapy, activity packets, etc.), but the family is not responding or participating? And how should we go about “tracking progress” in this situation?

  1. Documentation of attempts to offer services is key in these situations.
  2. If the parent is not responding or providing access to the child, it is as if the child is not at school. Document this. It will be considered in terms of compensatory services. Continue tracking progress again when the child is made available.

3.   Please clarify whether the amendment is changing the PEIMS coding in regard to placement.

  1. We do not believe this changes the PEIMS code in regard to placement during the COVID-19 closures. The student is still “placed” in their placement; it just looks different.

4.   What could direct, indirect, and consult services “look” like during this time?

  1. Example of direct services: 30 minutes on Zoom once per week working directly with the student on goals and objectives.
  2. Example of indirect services (consultation): a phone call with the student’s teacher to ensure that their virtual instruction is appropriate and/or to give the teacher consultation regarding how to support the related services with the student during the teacher’s instructional time.

5.   What if the parent disagrees to the IEP amendment but also refuses to participate in an ARD via teleconference?

  1. Hold the ARD meeting without the parent after giving multiple notices and attempting to get the participation of the parent. Document the attempt to have the parent participate in the ARD.
  2. If the parent still refuses to attend, hold the ARD and have the ARD committee decide on the appropriate services for the student during the COVID-19 closure. Then, send home all the ARD paperwork as well as prior written notice regarding the decisions made and the options considered by the ARD committee.
  3. Wait 5 school days after you have sent the prior written notice and then attempt to implement what the ARD committee decided. Document the attempt to have the parent participate in the ARD and all of the attempts to provide the services that the ARD committee agreed to.

6.   May an SLP intern or SLP assistant provide teletherapy?

  1. Texas Department of Licensing and Regulation (TDLR) has relaxed the rules on supervision for SLP interns and These suspensions are in effect until terminated by the Office of the Governor or until the March 13, 2020 disaster declaration is lifted or expired.
  2. TDLR has also relaxed the rules regarding SLP SLP interns may provide services to clients remotely using telehealth. SLP interns may also now receive direct supervision through telehealth. Additionally, all supervision hours—both direct and indirect—may be conducted through telehealth.
  3. TDLR has also related the rules regarding SLP assistants. SLP assistants may provide services through telehealth, as directed by their SLP assistants may receive 100 percent of their monthly supervision through telehealth. Supervisors may use telehealth for both direct and indirect supervision.
  4. See link for more information: https://www.tdlr.texas.gov/slpa/slpa.htm

7.   Please address transition services, specifically work-based learning.

  1. Transition services must be provided to the extent they can during school closures. If the service needs to be modified or discontinued because it cannot be provide without in- person instruction (such as work based learning), you will need to provide the parent with an IEP amendment or hold a virtual ARD to discuss changing these services during the COVID-19 school closure.
  2. Parents should be provided prior written notice of these modifications or changes to the transition services.
  3. Once in person instruction resumes, the ARD committee will need to discuss any compensatory services needed.

8.   What do we anticipate compensatory services looking like when we come back?

  1. This will differ based on the individual needs of the The ARD committees will need to consider benchmark data from before school closure and progress documentation taken during the school closure. TEA has provided guidance that we should be considering what, if any compensatory services will be provided. Thus, if a student has been able to make progress towards goals and objectives during this time, those factors as well as all other data points can be taken into consideration for this decision. In addition, any guidance from the Department of Education will also be considered.

9.   If a child was scheduled for an initial evaluation for related services prior to school closures, does the 45-day requirement still apply? How do they get evaluated?

  1. According to TEA, if the school remains open (either on a virtual basis or face-to-face), the 45 school-day timeline requirements apply. An evaluation that can be completed without in-person contact should be completed virtually. However, this will only be possible in limited circumstances.
  2. For evaluations where the in-person portions have already been completed (e.g. classroom observations and assessments), the district should finish the report and hold an initial ARD virtually.
  3. If the district does not believe it is possible to conduct an appropriate evaluation under the current circumstances, the district should send prior written notice to the parent/guardian explaining the reason for delay.
  4. A partial evaluation should not be completed. According to the TEA Guidance, “special education eligibility determinations for students should not be made without considerations of all relevant data points that would be provided in an [full initial individual evaluation] FIIE. Eligibility decisions, and any subsequent IEP development decisions require consideration of all relevant data in order to ensure that sound decisions are made in the best interest of the student [34 CFR 306].”.

10.   Can an evidence-based coaching model be used to provide related services in collaboration with a parent to provide services? If so, would this be considered direct instruction?

  1. In this emergency situation, any service that can be provided to address the student’s IEP services, should be attempted, if appropriate. Therefore, if the parent is willing to be coached to provide the service, such consultation, if appropriate for the student’s needs, should be attempted. However, if the service is being provided to the student by the parent, rather than the related service provider, it will not be considered direct instruction.

11.   What are your thoughts on packets being sent home as a related service therapy?

  1. The modality of instruction should be determined on a case-by-case basis considering the individual student’s needs. While virtual platforms may provide more personalized services in many cases, not all students will be to access such platforms or make progress doing so. The fact that a district provides packets will be considered in the determination as to whether the student received FAPE and/or is entitled to compensatory services.

12.   Please speak to the need to record the zoom sessions.

  1. If a Zoom session is recorded by a district employee, it will become a district record and will thus be subject to FERPA requirements and should be maintained by the district.
  2. Districts should emphasize the importance of confidentiality in this context and ask that the parent not record the session without notice to the district employee.

13.  When documenting related services, do we need to document skills or sessions?

  1. To the best of your ability, you should continue to document as you do when school is in session based on the services you provide. The minutes provided as well as the skills addressed and the progress on the goals and objectives should be documented.

14.   I was told by our school district that the LSSP could lose their license by providing my daughter her counseling services via phone or video. Please advise.

  1. It is best to consult your school district’s legal counsel on this issue. However, according to the National Association of School Psychologists, an LSSP can provide teletherapy with informed consent.
  2. Also see TEA Guidance regarding COVID 19: Providing Counseling as a Related Service April 14, 2020.

15.  Please address crisis preparedness considerations with teletherapy. Can we require parent/guardian to be home when engaging in teletherapy with students?

  1. See TEA Guidance regarding COVID 19: Providing Counseling as a Related Service.

16.   Considering a modified FAPE, is it a matter of what the school offered or what the parent opted into participating in?

  1. What the school offered and what the parent agreed to accept will both certainly be a consideration as to the reasonableness of compensatory services when students return to campus. The district should be delivering any service that it is allowed and able to deliver during this time and document service-by-service what is accepted or denied. Remember that the districts also have a responsibility to ensure that students are able to access these services—this will also be a factor in the determination regarding compensatory services.

17.   Would you recommend or require all student information (ARDs, FIEs, parent communication) to be password protected when you are emailing documents?

  1. This is always a best practice where practical. However, the district must ensure that the parent is still able to access such documents. This is also recommended as to any virtual platforms used for the provision of services or ARD meetings given recent cybersecurity concerns with these platforms.
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