VDOE Special Education and Student Services (SESS) Frequently Asked Questions
Updated May 20, 2020
Providing a Free Appropriate Public Education (FAPE) through a Virtual/Distance Learning Platform during the Extended School Closure due to the COVID 19 Pandemic
The purpose of this Frequently Asked Questions (FAQ) document is to provide updated guidance as the situation related to the COVID-19 pandemic evolves. However, in this unprecedented situation, there are no “general rules,” other than the regulatory requirements, which can be applied to fit all of the individual situations and expectations. Special education has always been meant to address student specific needs in the provision of a free appropriate public education (FAPE) and, as such, what is being done for a particular student in one local educational agency (LEA) may not be appropriate for a student in another LEA. In fact, the Virginia Department of Education (VDOE) has advised school divisions to develop a plan that meets its own individual needs, so long as what is put in place conforms to what is regulatorily required. Of vital importance in the development of this plan is keeping in mind that students with disabilities must be served and accommodated when instruction is provided to their non-disabled peers. When providing services, it is important to continue to monitor progress; as this will provide a starting point for consideration of services required after the reopening of schools. While there is no identified method or detailed guidance to adequately and equitably meet the needs of all students, in this emergency, LEAs need to be flexible and consider employing a variety of delivery options as they make reasonable efforts to provide services to students with disabilities. Above all, LEAs should prioritize the health and safety of students, staff, and communities. LEAs should identify and acknowledge service delivery limitations, as well as the need to make reasonable efforts to fully implement a student’s Individualized Education Program (IEP) once normal school operations resume. The requirement to “make every effort…” does not allow an LEA to decline all or some services to students with an IEP and only offer compensatory services at a later date. While we are seeking guidance on how the impact of the COVID-19 pandemic will have on certain provisions of the Individuals with Disabilities Education Improvement Act (IDEA 2004), at present none of the requirements outlined in IDEA 2004 and, for that matter, the Regulations Governing Special Education Programs for Children with Disabilities in Virginia (the Virginia Regulations) can be waived. As such, any requirements for IEP development, review and revision, evaluations and eligibility, the provision of special education and related services, data and reporting, monitoring and funding are still in place. However, methods to meet these requirements may look different during this time. Engaging families will be essential to successful implementation of virtual/distance learning for all students, but especially students with disabilities. Partnerships with families will be critical as we work together to make sure learning continues for the remainder of the school year and beyond. LEAs should talk to parents, who are key members of the IEP Team, and help them consider how they may best ensure that students with disabilities have the necessary support, including medical support, in place during this unprecedented public health-related school closure. Consultation with the parents should explore how students with disabilities will gain equitable access to home instruction. This is a temporary situation, and districts must offer special education services to the most appropriate extent possible while students are away from their schools/programs.
There is no one right way to provide services. As stated in the Office of Special Education and Rehabilitative Services/Office for Civil Rights (OSERS/OCR) guidance, the provision of FAPE may include, as appropriate, special education and related services provided through distance instruction that is provided virtually, online, or telephonically. Many disability- related modifications may be effectively provided online, such as extensions of time for assignments, videos with captioning or embedded sign language interpreting, accessible reading materials, or speech/language services through video conferencing.
The VDOE strongly encourages districts to communicate frequently with families about what is
happening and to provide information to families on an ongoing basis. LEAs should address health and safety of staff and students as the first priority, determine how to provide special education services, and communicate with families in an ongoing manner as the plan develops.
Provision of FAPE
1. Has there been any discussion about how school divisions will provide for a free and appropriate public education (FAPE) for students with disabilities in the event of school closures?
If a school closure causes educational services for all students to pause within a school or division, then the school/division is generally not required to provide services to the affected students eligible for special education services during that same period of time. If a division has extended school closures, the Virginia Department of Education (VDOE) has advised that school divisions should consider options and ideas to engage students in reading, thinking, and learning. Creating such opportunities should be done with careful consideration of providing equitable access and support for a variety of students. Such positive proactive strategies to continue engagement in learning are not a form of instruction/instructional day and may not trigger the requirement to provide a free and appropriate public education (FAPE) to students with disabilities.
If a school division does begin to offer general education instructional services by alternative means (e.g., e-learning, distance learning), the division will remain responsible for the provision of FAPE of its students eligible for special education services with an individualized education program (IEP). The context of the general education offering should be considered as the local education agency (LEA) develops appropriate and reasonable special education to ensure the provision of FAPE to students with disabilities. The LEA should ensure decisions about provision of services are inclusive of both special education and related services.
Accessible technology may afford students, including students with disabilities, an opportunity to have access to high-quality educational instruction during an extended school closure, especially when continuing education must be provided through distance learning.
Once school resumes, the school must return to providing special education and related services to students with disabilities in accordance with the student’s IEP, or for students entitled to FAPE under Section 504, consistent with any plan developed to meet the requirements of Section 504. Additionally, after an extended closure, divisions are responsible for reviewing how the closure impacted the delivery of special education and related services to students eligible for special education services.
In the event that a school division reopens but a student with a disability is advised to remain at home by a public health authority or school official for an extended period of time because of COVID-19, the U. S. Department of Education’s Office for Civil Rights (OCR) guidance states that provisions should be made to maintain education services. During such absences, if the school is open and serving other students, the school must ensure that the student continues to receive a free appropriate public education (FAPE), consistent with protecting the health and safety of the student and those providing that education to the student. If feasible, the student’s IEP Team, or the personnel responsible for ensuring FAPE to a student for the purposes of Section 504, can be utilized to assist with the effort to determine if some, or all, of the identified services can be provided through alternate or additional methods.
Additional Resources: The Council of Administrators of Special Education (CASE) webinar Navigating the COVID-19 Crisis: Considerations for Special Education Administrators reviews the continuum of educational offerings that may be provided by an LEA during school closures. The examples provided in the CASE webinar detail the general education continuum of services and include: Completely Closed, Homework Packets, Continuous Learning Opportunities, e-learning/Distance, and Completely Open. Each LEAs specific offering of general education services will determine their obligation to provide FAPE for students with disabilities.
2. What options should a school division consider to ensure the provision of FAPE to students with disabilities when a school goes to a distance learning platform for all students?
School divisions must ensure that students served by special education have access to a learning platform that is comparable to those being provided to their peers. To the greatest extent possible, the school division must provide the student with the services required by the student’s IEP. In many cases, instructional accommodations may be met in a virtual environment by providing additional supports, such as an individualized telephone call or video conferencing. IEP Teams should consider how the current services, accommodations, and modifications are provided in a physical classroom setting (i.e., extra time, redirection, small group, among others) and what this would look like in a virtual environment. If there are services, accommodations, and modifications required by the student’s IEP that cannot be provided during this time, the student’s IEP Team must determine which services it can provide to meet the student’s needs and any needed changes in services, accommodations, and modifications can be made through the IEP amendment process.
3. Is a school division required to provide related services when it has decided to use a virtual learning platform for all students?
If a student’s IEP requires the provision of related services, a school division remains responsible for ensuring that such services are provided through a virtual learning platform as long as the school division can ensure that services are provided effectively and that individual students are able to effectively access them and receive a reasonable educational benefit from such services given the service delivery method.
4. What considerations should be made prior to conducting meetings or offering special education or related services using alternate means (e.g., telephone or teleservices)?
When implementing an alternate means for special education related meetings, it is important for LEAs to consider any requirements from the VDOE and the Virginia Department of Health Professions, if related service providers are participating. When conducting meetings using alternate means such as telephone or videoconferencing, LEAs should ensure that parents are informed of possible privacy considerations and consent to the use of the suggested method for the meeting. This includes documentation of the discussion of how the LEA will share (provide) special education documents with the family. FERPA & Coronavirus Disease 2019 (COVID-19) Frequently Asked Questions (FAQs) March 2020 guides LEAs that in the context of COVID-19, the LEA should continue to protect student privacy and prohibit the “disclosure of personally identifiable information (PII) from student education records to individuals and entities who may not already have access to that information (p.1).”
The Office for Special Education and Rehabilitative Services March 21, 2020, Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities states that “...in making changes to a child’s IEP after the annual IEP Team meeting, because of the COVID-19 pandemic, the parent of a child with a disability and the public agency may agree to not convene an IEP Team meeting for the purposes of making those changes, and instead develop a written document to amend or modify the child’s current IEP. 34 C.F.R. §300.324(a)(4)(i).”
If the LEA determines they will offer special education and related services prior to implementing an alternate means (e.g., telephone or teleservices) to deliver services, the LEA should ensure that they have considered the latest guidance on FERPA and HIPAA.
Professionals may have additional requirements when licensed by Virginia Department of Health Professions or certified by a national professional association (e.g., American Physical Therapy Association, American Occupational Therapy Association, American Psychological Association, American Speech-Language Hearing Association).
If the LEA will be implementing alternate means for the provision of special education or related services, it is important for LEAs to consider the requirements for staff licensed by the Virginia Department of Education and those licensed by the Virginia Department of Health Professions. Staff may consider the use of online tools or telephone for the provision of services.
The Office for Special Education and Rehabilitative Services March 21, 2020, Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities states that the provision of services “may include, as appropriate, special education and related services provided through distance instruction provided virtually, online, or telephonically.” Virginia’s Department of Medical Assistance Services (DMAS) guidance from March 19, 2020, includes “waiving the requirement that services delivered via telehealth (real-time, two-way communications) must utilize both audio and visual connection. DMAS is allowing the use of audio connections in addition to audio-visual connections.”
When planning for the provision of services, LEAs should consider any additional applicable regulations of licensing agencies (e.g., Virginia Department of Health Professions) and certification entities (e.g., American Physical Therapy Association, American Occupational Therapy Association, American Speech-Language Hearing Association).
Related service providers are obligated to determine the appropriateness of the means for delivery of services for each individual student. If a visual is required and only telephone services are available, the provider should document that appropriate services cannot be offered. Additionally, providers should consider student safety and the ability of the adult providing supervision at the remote location to implement provider’s instructions and support related services activities. If the therapist determines there is not an appropriate or safe way to deliver the related service using an alternate means this should be clearly documented.
While it is still important for LEAs to safeguard students with disabilities’ rights to privacy, the Office for Civil Rights (OCR) at the Department of Health and Human Services (HHS) provided guidance on March 19, 2020, entitled Notification of Enforcement Discretion for telehealth remote communications during the COVID-19 nationwide public health emergency. This guidance states that it “will not impose penalties for noncompliance with the regulatory requirements under the HIPAA Rules against covered health care providers in connection with the good faith provision of telehealth during the COVID-19 nationwide public health emergency.” Specific examples of tools that may be used and those that should not be used were also provided.
“Under this Notice, covered health care providers may use popular applications that allow for video chats, including Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, or Skype, to provide telehealth without risk that OCR might seek to impose a penalty for noncompliance with the HIPAA Rules related to the good faith provision of telehealth during the COVID-19 nationwide public health emergency. Providers are encouraged to notify patients that these third-party applications potentially introduce privacy risks, and providers should enable all available encryption and privacy modes when using such applications.
Under this Notice, however, Facebook Live, Twitch, TikTok, and similar video communication applications are public facing, and should not be used in the provision of telehealth by covered health care providers.”
The LEAs may continue to strive to use HIPAA-compliant platforms to deliver special education services and related services. The Virginia Department of Education does not endorse or recommend any platform, but the following list includes platforms that represent that they are HIPAA-compliant:
- Microsoft Teams for Healthcare
- Zoom for Healthcare
- Google G Suite Hangouts Meet
Before implementing teleservices for special education and related services, LEAs should:
- Consider the use of a Business Associates Agreement (BAA) to assure that the transmission of information from provider to client and client to provider is encrypted. Encryption is necessary to provide the first level of compliance with HIPAA & FERPA laws. Review HHS guidance on enforcement discretion during COVID-19;
- Verify that Virginia licensing regulations for teleservices for various license types is permitted; and
- Verify that staff and the student have necessary equipment and internet speed to engage in teleservices or telephone based services.
Individual providers should verify that the following conditions are met:
- Use LEA approved tools and document communication with family regarding variances in HIPAA compliance and confidentiality during delivery of services to students. Please review HHS guidance on relaxed enforcement during COVID-19 for temporary allowances;
- Maintain a secure location for providing services that is not interrupted (e.g., having others walk into the room where you are providing service);
- Maintain confidentiality using secure remote access to electronic documentation;
- Verify that someone will be physically present with the student who can support the session activities and maintain confidentiality.
- Maintain documentation of communication to families, services provided, student data, and treatment notes.
- NASP Virtual Service Delivery in Response to COVID-19
- U. S. Department of Health and Human Services, Health Information Privacy, the HIPPA Privacy Rule
- Notification of Enforcement Discretion for telehealth remote communications during the COVID-19 nationwide public health emergency
5. How can school divisions ensure the provision of FAPE to students with disabilities who are not good candidates for participation in a virtual distance learning platform?
When proposing to use virtual distance learning, there are several factors that the child’s IEP Team needs to consider. Some factors to consider include the complexity of the student’s special education and related services needs, the context and environment in which the student interacts, and how comfortable the student and his/her parent(s)/caregiver(s) are with using technology.
6. Many school divisions are proposing to provide only "consultative services" for students with disabilities during school closures through the end of the 2019-2020 school year. Is this appropriate to ensure the provision of FAPE?
What constitutes FAPE for each child with a disability is determined by the child's IEP Team. As such, so long as the IEP Team considers other proposed options as presented by the parent or other members of the IEP Team, provides the parent with prior written notice of all proposed and refused actions during the meeting, and the parent provides informed consent for the proposed special education and related services, then the services proposed by the IEP Team, no matter what they are, may be implemented.
7. What should IEP Teams consider in regards to progress reporting, monitoring, and data collection?
The areas of progress reporting, progress monitoring, and data collection are vital to providing services to students with disability in any circumstance, but they are especially critical in our current situation. As noted, school divisions will be called upon to determine what, if any, compensatory services are necessary once schools reopen. This will require consideration of the student’s baseline performance at the time of the school closure, any progress or lack thereof during distance learning, and the student’s performance after school reopens. What data collection looks like during the time schools are closed will be driven by the nature of the programming provided by the school division. Likewise, the provision of progress reports will be driven by the student’s IEP. It is important to remember that students with disabilities must receive progress reports at least as often as students without disabilities.
8. Many school divisions that have students placed in private day schools as the least restrictive environment and are proposing to provide only "consultative services" for students with disabilities during school closures through the end of the 2019-2020 school year are also proposing a change in educational placement from the private day setting and returning them to the public school setting. Is this appropriate to ensure the provision of FAPE?
As with the services to be provided to a student with a disability, the educational placement of a student with a disability is a matter of FAPE which is determined by the child's IEP Team. As such, so long as the IEP Team considers all of the options under the continuum of alternative placements, documents all alternatives considered and the rationale for choosing the selected placement, provides the parent with prior written notice of all proposed and refused actions during the meeting, and the parent provides consent for the proposed change in placement then the change in placement may be implemented.
9. Are exemptions being made for any schools to reopen?
The State Superintendent may provide variances on a case by case basis in very limited circumstances. Any request should include at a minimum the following information: (1) Name of program or facility making the request; (2) Size of the student population it serves; (3) Types of services being provided; (4) Reason for request; and (5) Size of staff needed to remain open. If you are a school seeking a variance, please submit your request in writing to the Office of the Superintendent of Public Instruction at Superintendent@doe.virginia.gov.
The term compensatory services is generally attached to the provision of additional special education and related services due to the failure of a school division to provide FAPE. However, in the current situation of extended school closure, which is well beyond the control of the school division, this should not be the case. Rather, the IEP Team should determine what impact the extended school closure due to the COVID-19 situation had on the ability of the school division to provide even comparable services to its students with disabilities and then to determine what, if any, “remedial” services should be provided. In certain circumstances, based upon individual student needs, the IEP Team may deem that the absence of services, albeit not at the direct fault of the LEA, may warrant the provision of extended school year services due to the student having regressed on the progress they were making prior to the extended school closure.
10. What if a student with a disability has needs that are so complex that they cannot be reasonably provided in a virtual learning platform?
If services needed to ensure FAPE are so complex and, as such, cannot be reasonably provided through a virtual learning platform or other alternative means that are available to other students, then the child’s IEP Team must determine the extent, if any, what compensatory services will be provided once normal school operations resume.
11. If virtual/distance learning is provided in some capacity but does not mirror the offer of FAPE in the IEP, will compensatory services be required once normal school operations resume?
Once normal school operations resume, each child’s IEP Team should plan to make an individualized determination regarding whether or not compensatory education and services may be needed for a student. The need for compensatory services can be measured by assessing whether or not the student continued making progress in the general education curriculum, or alternative course of study specified in their IEP, or toward meeting their individualized IEP goals and/or if any regression occurred during the period of school closure. As stated above, in order to make this determination, teachers should continue to monitor student progress in whatever alternative learning is provided.
12. Will IEP meetings be required for all students receiving special education services to change their placement during this closure to normal school operations?
The placement of a student receiving special education services does not necessarily mean the physical location where the special education and related services are being provided; therefore, the closure to normal school operations would not automatically be a change of placement for all students receiving special education and related services. Thus, an amendment to the IEP is not always necessary. If a student with an IEP is receiving the same services as students in the general education setting during school building closure, the IEP may not need to be amended with regard to placement or setting. IEPs will need review to determine how services will be provided and if a change of placement has occurred. Any changes to services (frequency, duration, or placement) will need to be documented through an IEP amendment.
13. Given the high number of IEP and/or IEP addendum meetings that will need to be convened in response to the closure of schools through the end of the 2019-2020 school year, if a parent chooses not to participate in a virtual meeting to discuss their child's identification, evaluation, educational placement, or the provision of a free appropriate public education (FAPE), can the meeting be held without them?
The requirements for conveying special education meetings do not change when a meeting is held by any alternative means. This includes ensuring that the parent is notified of the meeting early enough to ensure that the parent has an opportunity to participate. For meetings to discuss the provision of FAPE and the educational placement of the child this further requires scheduling the meeting at a mutually agreeable time. (Refer to the Regulations Governing Special Education Programs for Children with Disabilities in Virginia (the Virginia Regulations), at 8VAC20-81-170.A.1.b., a(2) and b, 8VAC20-81-170.c(2), and 8VAC20-81-110.E.) A meeting can be conducted without parental participation if the LEA is unable to convince the parent that they should participate and the LEA has a record of their attempts to arrange a mutually agreed upon time. (Refer to the Virginia Regulations at 8VAC20-81-110.E.4.)
14. Is it permissible to make changes to a child's IEP without convening a meeting?
It is permissible under federal and state special education laws and regulations to make changes to a child’s IEP after the annual IEP Team meeting for the school year if the parent(s) and the LEA agree not to convene an IEP Team meeting for the purposes of making those changes, and instead may develop a written document to amend or modify the child’s current IEP. If an amendment to a child's IEP is made without a meeting, the following actions must occur: (i) if changes are made to the child’s IEP, the LEA shall ensure that the child’s IEP Team is informed of those changes; and (ii) upon request, a parent shall be provided with a revised copy of the IEP with the amendments incorporated. It is important to note that this meeting is not a substitute for the required annual IEP meeting.
15. As we look at developing annual and initial IEPs for the 2020-2021 school year, what should be reflected in the IEP as the projected date for the beginning of services?
The projected date for the beginning of services outlined in a child's IEP falls to the preview of the child's IEP Team to determine.
16. What about the use of electronic signatures?
The Virginia Regulations (8 VAC 20-81-170.I) permits the use of electronic signatures, and references another portion of the Code of Virginia, the Uniform Electronic Transactions Act (UETA), to spell out the details of what can be an electronic signature. The UETA provides that an electronic signature is a symbol, a sound, or a process logically associated with a record, that is adopted by a person with the intent to sign. Additional consultation and a plan for documentation with counsel or a division’s school board attorney is strongly recommended.
17. Timelines for special education and will the state or federal calendar be adjusted?
At this time, there is no guidance from the U. S. Department of Education’s Office of Special Education Programs (OSEP) regarding the waiver of federal timelines related to special education compliance. OSEP has been clear in the past there is no waiver for natural disasters. However, OCR has provided guidance that “IEP Teams are not required to meet in person while schools are closed.” In addition, OCR has stated that “If an evaluation of a student with a disability requires a face-to-face assessment or observation, the evaluation would need to be delayed until school reopens. Evaluations and re-evaluations that do not require face-to-face assessments or observations may take place while schools are closed, so long as a student’s parent or legal guardian consents. These same principles apply to similar activities conducted by appropriate personnel for a student with a disability who has a plan developed under Section 504, or who is being evaluated under Section 504.” With this in mind, local school divisions should develop a plan to support maintaining timelines and to document clearly if a delay occurs, the nature and extent of the delay and the plan to move as quickly as possible to prevent any further delay. Local Directors of Special Education should be consulted for local- and school-based guidance.
School divisions should recall that existing regulations already provide for certain types of flexibility with regard to holding meetings and for extending timelines. For instance, if the parent and school division agree in writing to extend the 65 business day timeline to obtain additional data that cannot be obtained within the 65 business days, the evaluation/eligibility timeline may be extended. In addition, amendments to IEPs may be made without a meeting, and meetings may always be conducted virtually or by phone (refer to 8 VAC 20-81-110.E.3). As always, school divisions should be flexible in allowing parents to attend IEP meetings by alternative means and clearly communicate these options to parents. Additionally, school divisions should carefully document all attempts to arrange meetings with parents, including providing meeting notice that complies with special education regulations.
Additional Resources: FERPA & Coronavirus Disease 2019 (COVID-19) Frequently Asked Questions
Extended School Year (ESY) Services
18. For students with already identified extended school year (ESY) needs, how will public school closures related to coronavirus impact the provision of these services?
The need for ESY services is a student specific determination and, as such, each child’s IEP Team will need to determine whether a student qualifies for ESY services as a result of school closure due to response to COVID-19. If a student was determined to need ESY services prior to school closure, then the student would continue to need ESY. The effect of the closure should be evaluated for each student with a disability. This may result in the need for compensatory services in some instances, where the student requires additional services to compensate for a denial of FAPE. In other instances, additional students may require ESY, as when the prolonged absence may increase the likelihood of regression during other breaks. Nothing in the applicable law or regulations restricts the provision of compensatory or ESY to any particular part of the school year or during breaks.
19. What is the difference between compensatory services and extended school year (ESY) services?
Compensatory services are provided to remediate the failure to offer FAPE, as outlined in the student’s IEP. This should be determined and provided on a case-by-case basis, as determined by the child’s IEP Team. The IEP Team should evaluate and discuss the effect of the extended school closure on the student’s progress toward their IEP goals. Compensatory services would be determined after normal school operations resume. ESY services would be required if the child’s IEP Team determines that the progress a student has achieved would be severely jeopardized by the failure to provide ESY. The need for compensatory services and/or ESY services should be examined on a case-by-case basis for each student, as required by federal and state special education laws and regulations, as soon as possible after normal school operations resume.
20. When considering new requests for ESY or compensatory services, what information should teams review?
Because special education and related services support a student’s involvement and participation in general education, local decisions about the provision of general education will directly impact how compensatory education and/or extended school year services will be determined. Until additional information is available about the reopening of schools in Virginia, LEAs may not be able to address ESY and compensatory service requests. Consideration of any future Executive Orders as well as local decisions about the provision of general education services are important.
If an IEP Team is asked to consider ESY once schools are reopened and a local decision about general education services is made, it should review information including the services offered and delivered to students in general education and special education and communication with families.The VDOE guidance, EXTENDED SCHOOL YEAR SERVICES Implementing the Requirements of the Individuals with Disabilities Education Improvement Act, 2004 and Federal Regulations, 2006-This is a PDF document. states that, “ESY services should not be granted solely on the basis of the student’s failure to achieve one or more of the IEP’s goals (p.17).” This guidance document also provides information on factors for the IEP Team to consider and examples of the variety of ways ESY can be implemented. The IEP Team’s consideration of compensatory services should be discussed when school reopens. Information about the student’s individual performance and data regarding the growth or loss of skills should be considered. The IEP Teams should consider the student’s level of functioning with respect to the amount of services provided in general education and compared to peers as well as their individual level of functioning both at the end of in person instruction compared to when they return to school. It is important to consider how any services will be delivered to ensure they do not impact new learning.
21. How will services be provided to parentally-placed students in residential facilities?
School divisions remain responsible for providing the equitable services identified through the private school consultation process. However, in that the private schools across the Commonwealth are also closed for the same duration as public schools, with the exception of private residential schools licensed by the Department of Behavioral Health and Developmental Services (DBHDS), VDOE recommends that school divisions communicate with the private schools in their region to determine whether any equitable services could continue through virtual/distance learning or other alternate methods and to continue providing such services if possible. The VDOE also recommends school divisions communicate with families of students with individual services plans to let them know if services will or will not be provided. Students parentally-placed in residential services, who receive FAPE from public schools, will not be entitled to services while public school is closed.
22. Is there an obligation to provide set-aside services for students with disabilities who are parentally placed?
Set-aside services would not be required in that both the public and private day schools are closed. As such, students who are enrolled as “parental placements” will not receive services through set-aside funding.
Early Childhood Education
23. What about children referred from Part C to Part B?
On April 27, 2020, the U.S. Secretary of Education, Betsy DeVos, released a report to Congress, recommending the extension of IDEA Part B transition evaluation timelines such that calculation of a timeline obligation shall resume no later than the day on which health and safety factors allow for face-to-face meetings to resume and the toddler is able to be evaluated. The report also recommended authorization for Part C services to continue during the delayed Part B transition evaluation timeline so that a toddler may continue to receive Part C services after a child’s third birthday and until a Part B evaluation is completed and an eligibility determination made. These are the Secretary's recommendations for Congress to consider. There has been no change in transition requirements for Part C or Part B at this time. Unless or until Congress acts to implement these recommendations, Part B should continue to receive referrals from Part C.
All local early intervention systems continue to operate at some level. Many local systems are no longer providing in-person services or visits. Where appropriate and feasible, telehealth is being used for eligibility determination, assessment for service planning, initial and annual Individualized Family Service Plan (IFSP) meetings, IFSP reviews, and IFSP services (including service coordination). With the exception of initial assessments for service planning, the term telehealth includes services delivered by phone (audio) or through videoconferencing (audio-visual) technology. Telehealth delivery of initial assessments for service planning must be conducted using videoconferencing (audio-visual).
Since IFSP meetings and reviews may continue, the transition conference may also be held. Regulations require the LEA to participate in transition planning conferences arranged by the designated local Part C early intervention agency. Temporary policies in place during the coronavirus (COVID-19) public health emergency allow that IFSP meetings may be held via telehealth, by phone or video-conference. In the instance that the local school division representative cannot participate in any of these ways, then the division is to provide written information about early childhood special education services to the family and a contact name and phone number where the family may call with questions about school services. School division representatives should communicate with their local Part C early intervention agency regarding school closures and ability to participate.
As long as local early intervention systems have the means (phone, fax, secure email, U.S. mail) to send notification/referral to the local school division and VDOE, they are expected to do so. If the local early intervention system has no means by which to send notification/referral, then those circumstances must be documented in the child’s Early Intervention Record and the notification/referral sent as soon access to a means of transmitting the notification information is accessible. Therefore, it should be expected that referrals may continue to be sent from Part C to Part B. As noted in Question 16 above, OSEP has not provided a waiver of federal timelines.
Please refer to the Transition from Early Intervention to Early Childhood Special Education FAQ-This is a Word document. for more information.
24. What if a referral from Part C to Part B is late?
The OSEP recognizes that there are reasons that a referral may be late due to reasons that are beyond the control of the local Part C early intervention agency and/or LEA. OSEP previously provided the following examples:
- withdrawal of parental consent, the child moved, or any extenuating circumstance;
- the parent failed or refused to make the child available;
- parent refusal to provide consent caused delays in evaluation or initial services (e.g., referred less than 65 business days prior to age of eligibility); or
- child referred to Part C less than 90 days before the third birthday.
During the COVID 19 public health emergency, instances in which the referral is late due to a local early intervention system closing or having no means by which to send the referral are also considered beyond the control of the ITC and the LEA. Part C has been asked to clearly communicate the reason for all late referrals to Part B.
25. Does a referral to a Local Education Agency require a parent signature?
A referral to a LEA is done by transmitting each child’s name, parent’s name(s), address, phone number, and birth date to the child’s LEA of residence. Sending a referral does not require written consent from the parent. However, a referral or notification will not be completed if a parent disagrees in accordance with the opt-out procedures specified in the Infant & Toddler Connection of Virginia Practice Manual. If a parent does opt-out, the service coordinator is to provide documentation in the child's EI record.
26. What should local education agencies provide when a preschool aged child receives IEP services in a child care or community-based preschool program that is still open?
At this time, child care and community-based preschools are not impacted by the Governors order to close schools. Community-based preschool and child care sites should make closure decisions in coordination with local health departments and if remaining open, adapt service settings to align with public health recommendations. As such, there is variability in what programs will remain open/closed and many of these locations will continue to operate in what are highly extraordinary circumstances. Some preschool aged children (2-5) receive services through their IEP in community-based preschool or child care centers. If a school division does not provide any educational services to the general student population, then the school division would not be required to provide services to students with IEPs during that same period of time.
If a school division does begin to offer instructional services by alternative means, the division will remain responsible for FAPE of its students eligible for special education services with an individualized education program (IEP). The decision to provide services and how they will be delivered is made by the LEA based on their local response during the period of school closure.
If services are not able to be provided per the IEP, the IEP Team would need to be reconvened to make an individualized determination as to whether compensatory services are needed under applicable standards and requirements for the time/services not provided.
VDOE Sponsored Training Activities
27. How will VDOE’s Training and Technical Assistance Centers’ (TTAC) scheduled professional development activities and services to school divisions be impacted?
As part of containing the community spread of COVID-19, VDOE staff is keeping people's travel and group gatherings to a minimum; universities with TTACs have policies and procedures for containment, as well. At this time, the VDOE staff is taking precautions, which involve changing face-to-face gatherings with educators to virtual sessions, and canceling or postponing events. For the TTAC services to schools, TTAC staff members are employees of the universities and must follow their university policies and procedures, even if that means canceling some or all travel. Schools who were expecting TTAC services should be communicating with the TTAC office for specific information.
Standards of Learning (SOL) Testing
28. Will VDOE cancel Standards of Learning (SOL) testing?
On March 23, 2020, Governor Northam ordered all K-12 schools in Virginia to close for the remainder of the academic year as a response to the continued spread of COVID-19. As such, the administration of the SOL tests, the local scoring and score entry requirements for the Virginia Alternate Assessment Program, and the administration of the ACCESS for ELs assessment for English Learners are suspended.
29. Are schools able to bill Medicaid for IEP services that are delivered via telehealth?
The DMAS encourages the use of telehealth to deliver covered, special education-related services, as authorized by the child's IEP, during this period of Governor-declared emergency. Any of the covered services, as described in DMAS Provider Manual for Local Education Agency providers, may be delivered via telehealth at the discretion of the qualified provider working within the scope of their professional services.
General guidance provided by DMAS includes:
- Use the typical CPT/billing code for these services - the same code that one would use if delivering the service through traditional, in-person methods.
- It is recommended, but not required, to use the "GT" billing code modifier in the DMAS billing system, and the use of the place or site code of "02" as the site of care. (Particularly for schools that have not billed DMAS for services delivered via telehealth before, please know this is optional and not required. DMAS does not want uncertainty with the billing system to interfere with billing for these services.)
- Document in the student's service record (e.g., progress note) that the minor child's parent or guardian has consented to the use of telehealth to provide the service.
- Include sufficient detail in the documentation to support that the service was effectively provided via the telecommunications method(s) chosen.
- The student's home is an acceptable "originating site" for purposes of receiving services via telehealth.
Note that, for the length of the state of emergency, DMAS is relaxing the modalities acceptable for delivery of services via telehealth. School service providers may provide covered services via audio-only telephone contacts, for example, and through non-HIPAA compliant smart phone or computer apps (e.g., FaceTime, Skype). If a non-HIPAA compliant smart phone or internet-based application is used, however, DMAS recommends documenting that the parent or guardian gave informed consent to the use of a non-HIPAA-compliant application. DMAS is also allowing for the student to receive the services from home, and is not requiring that an aide be present with the student during the encounter.
- DMAS Provider Flexibilities as a Result of COVID-19
- DMAS Provider Manual for Local Education Agencies
30. How should LEAs address vendors for purchased service (e.g., contractors) during school closures for COVID-19?
The LEA representatives should review their contracts with vendors regarding school closures. If partial payment is permitted for reduced hours, vendors contracted staff may continue to draft evaluation reports and participate in virtual or phone meetings according to local procedures. Documentation of hours worked and payment for time would follow the LEA’s approved procedure.
If vendors request that their staff be allowed to continue to provide services to students during school closures, the LEA should carefully consider unintended consequences. One unintended consequence that may arise from the provision of services during an official school closure is the potential request for services during other school closures such as winter break and summer vacation. The ability of the LEA to offer the full range of special education services should also be considered (e.g., OT, PT, SLP, Psych).
Payment to contractors to ensure availability of providers after school reopens is not required by VDOE. All goods and services must be received prior to using state or federal funds to pay vendors.
Dispute Resolution Processes
31. What is the impact of school closures on timelines for special education dispute resolution processes, such as a state special education complaint investigation?
At this time, there is no guidance from OSEP on this issue. We note, however, that the federal and state special education regulations, at 34 C.F.R Section 300.152(b)(1)(i) and 8 VAC 20-81-200.D.4.c.2, permit an extension of the 60-day timeline for a state special education complaint investigation if “exceptional circumstances” exist. While OSEP has found that state staff shortages and school vacations and breaks do not constitute “exceptional circumstances,” there is no clear guidance regarding the impact of a declared national emergency on this issue (refer to US ED, Office of Special Education Programs, Questions and Answers on IDEA Part B Dispute Resolution Procedures (July 23, 2013)). Note that the Office of Dispute Resolution has the authority to extend timelines for complaint responses and additional information on a case by case basis. School divisions and parents are encouraged to document any difficulties they may have in responding to a state complaint, such as unavailability of staff or inaccessibility of records, to assist VDOE in making a determination whether exceptional circumstances exist that justify extending the timeline.
32. What is the impact of school closures on timelines for special education dispute resolution processes, such as due process timelines?
At this time, OSEP has not provided clear guidance on the impact of the COVID-19 outbreak on due process timelines. However, OSEP’s November 2012 Letter to Pat Geary and James P. Lorenzo may be instructive. The 2012 Letter makes it clear that OSEP does not believe it has the authority to simply extend IDEA Part B deadlines. However, the 30-day resolution period may be extended in non-expedited cases. 34 CFR 300.510(c). Further, in non-expedited cases, hearing officers may grant extensions beyond the timelines. 34 CFR 300.515(a).
OSEP’s Letter to Fletcher is instructive with regard to calculating deadlines in expedited cases. Although continuances are not permitted in expedited cases, the timeline for hearing and decision are based on school days. Letter to Fletcher indicates that days that school is not in session are not counted when calculating school days for purposes of expedited timelines. The VDOE encourages hearing officers to consider the various national, state, and local states of emergency that have been declared, as well as the health and well-being of the students, parents, teachers, administrators, staff, witnesses and attorneys in rendering decisions on motions pertaining to continuances, witness appearances, and other relevant motions during this time. Parties who have filed a due process that is currently pending also have the option of advising a hearing officer that they wish to withdraw their due process request so that they may re-file at a later date.
Finally, we note that due process timelines commence when the due process request has been received by VDOE and the LEA (or the parents, if the LEA is the filing party). The date of receipt may be delayed if state or local agencies are closed due to the COVID-19 outbreak.
33. How will the COVID-19 outbreak affect mediation?
During the pandemic, VDOE will offer virtual mediation by conference call on a case by case basis. The VDOE will make arrangements with the mediator for the conference call. Parents and school staff must jointly agree to utilizing mediation in this truncated format. Before the mediation commences, the mediator will obtain signed commitments to confidentiality.
34. Does the Governor's mandate that all of Virginia’s K-12 schools close for the remainder of the 2029-2020 school year a minimum of two weeks apply to private schools for students with disabilities?
On March 23, 2020, Governor Ralph Northam ordered all K-12 schools in Virginia to close for the remainder of the academic year as a response to the continued spread of COVID-19. Under the Governor's order, private day schools are required to be closed. Thus does not prohibit private day schools from providing continuity of education services to their students.
The State Superintendent may provide variances to the school closure mandate on a case by case basis in very limited circumstances. Any request should include at a minimum the following information: (1) Name of program or facility making the request; (2) Size of the student population it serves; (3) Types of services being provided; (4) Reason for request; and (5) Size of staff needed to remain open if you are a school seeking a variance, please submit your request in writing to the Office of the Superintendent of Public Instruction at Superintendent@doe.virginia.gov.
35. What is the impact of the extended closure on services provided to students with disabilities served in private school settings?
The impact of the state of emergency and extended closure on contractual arrangements with service providers through the CSA remain a matter of local jurisdiction. The VDOE has advised local school divisions to work with their local Community Policy and Management Teams (CPMT), local CSA office and partnering private schools to discuss this matter. The VDOE has also provided guidance to school divisions to carefully consider the provision of equitable access, services, and support for a variety of students including students who may be served by private providers. The Office of Children’s Services (OCS) has also been clear in communication that funds are able to reimburse localities for services as agreed to by the local CSA program, local school division, and private providers. There is no issued guidance from VDOE or OCS that would serve as a barrier for providing services to students served in private settings.
State Operated Programs
36. In that the teachers assigned to State Operated Programs (SOP) are employees of the LEA in which the SOP is located, how should services be provided to students in SOP programs during school closure?
Generally speaking this would be a matter for the employing school division's supervisor to determine in conjunction with the SOP education leader and host facility. Teachers should follow the directives of the employing school division much like they would for other normal breaks in education (i.e., spring break, winter break). However, in cases where teachers within the schools are working, even if remotely, to provide alternative instruction to students within the division, it is a reasonable expectation that the teachers assigned to the SOP program would report for work as normally scheduled provided the host facility has given permission for education staff to report.
The SOP education leader should continue to work with the school division supervisor and facility contact to determine the most appropriate way to deliver education services in the unique settings of the SOP academic program.
Local and Regional Jails
37. How should special education services in local and regional jails be treated?
The teachers that serve incarcerated students are employed by the public school divisions and should follow the school divisions’ policies and procedures. If a school closure causes educational services for all students to pause within a school or division, then the school/division is generally not required to provide services to the affected students eligible for special education services during that same period of time. The Jails Program teachers should follow COVID-19 containment procedures of the regional and local jails, as well.
VDOE Monitoring Activities
38. How will school closures related to COVID-19 affect my school division’s monitoring activities pertaining to program improvement as part of results driven accountability (RDA) and/or noncompliance as part of RDA, federal Indicators, or overuse of the Virginia Alternate Assessment Program (VAAP)?
At this time, there is no guidance from the United States Department of Education’s Office of Special Education Programs (OSEP) regarding the waiver of federal timelines related to special education compliance. Local divisions are encouraged to continue to work with their regional monitors to resolve noncompliance in a timely fashion, not to exceed one year from notification. Transferring files remotely via SSWS Dropbox or allowing "read only" access to your special education computerized program is encouraged in lieu of face-to-face meetings. There is more flexibility related to program improvement monitoring activities in that deadlines are not held to the same one year standard as compliance.
39. Should local school divisions plan on any adjustments to the submission of Annual Plans for special education funding supported through the Individuals with Disabilities Education Act (IDEA)?
Currently there are not any plans to change the due date of the annual plans. School divisions have all of the available information needed in order to submit their Annual Plans on time. Additional information in the FAQ regarding public meetings may be useful to divisions seeking board approval of their plans.
40. Given the extended closure, how can schools ensure student medication is returned?
Many schools were able to get student medication to families over the last two weeks. Schools may also select to arrange for pick up utilizing guidance for social distancing. Schools may also select to mail back student medication. The U. S. Postal Service regulations require medication to be mailed in a nondescript package that would not indicate that the package contains medication. Schools should exercise caution for any temperature-sensitive drugs that would require refrigeration for example, the use of ice packs may be necessary.
Special Education Advisory Committee (SEAC)
41. Do you have any guidance for the local Special Education Advisory Committee’s (SEAC) review of the Annual Plan?
A virtual meeting with the local SEAC may meet the requirement to share the annual plan with committee members. Additional information on public meetings can be found on the VDOE Frequently Asked Questions (FAQ) document on the agency website.
The Virginia Department of Education (VDOE) continues to work closely with the Governor’s Office, the Virginia Department of Health, and other state agencies to ensure our public schools and communities have the most up-to-date information and resources. The health and safety of our children and staff are our top priorities. Visit COVID-19 & Virginia Public Schools and Frequently Asked Questions for the latest information.
42. Must school divisions continue to engage in child find?
The IDEA requires all states to identify, locate, and evaluate all children with disabilities, regardless of the severity of their disabilities. During the pandemic, school divisions continue to be responsible for developing and implementing methods and activities for identifying children with disabilities who require special education and related services. As part of the child find responsibilities, school divisions must accept new referrals for evaluations and timelines still apply as noted in question 16. Until normal school operations resume, it is recommended that the website of the LEA and/or each school in the LEA display the contact details of the person(s) that a parent/guardian should contact to request an evaluation for special education. For referrals from Part C, the LEA is to let the local early intervention system know the name and contact information of the person who receives the notification/referral.
43. Must evaluations be completed during school closures? May a school division delay the completion of all evaluations until school resumes?
As stated previously, some evaluations that cannot be completed without face-to-face activities may need to be delayed until school reopens. However, there are evaluations that can and should be completed within the sixty-five business days timeline. Remember, evaluations always begin with a review of existing data, and on the basis of that review and input from the child’s parents, the team may identify any additional data that is required. If the team determines that existing data is sufficient and no additional data is required, then the team may move forward to discuss and determine eligibility. Teams should consider the sources of existing data available to document each of the eligibility criteria questions, including information about the educational impact and need for specially designed instruction. If any required data is not available or cannot be gathered to answer each of the eligibility criteria questions, the team may need to extend the timeline.
If a team determines that new data is required, they can decide if any components of the evaluation can be completed remotely and whether quality and comprehensive information will be provided. In this case, the team will need to:
- Ensure transparency with parents and clearly explain the alternate form of assessment,
- Accept and document a parent's refusal to participate in an alternative assessment or evaluation, and
- Know the required parental consent needed and prior written notice requirements and meet them.
For any new data obtained, teams will need to address reliability and validity issues. It is important to consider that any new assessment data will be gathered during this unprecedented time. Professionals should consider the impact of changes to daily routines and anxiety on students, their families and caregivers, and school personnel. After reflecting on the individual student and family circumstances, professionals may determine it is appropriate to gather data remotely and may gather evaluation components through record review; checklists (mail or online); interviews with teachers, parents, and students; or other activities. Before conducting new assessments using standardized and norm referenced measures, professionals should consider a number of factors including:
- whether an assessment can be validly and reliably administered virtually,
- norming and standardization of the instrument,
- technology requirements and availability in the home,
- availability of trained auxiliary examiner in the home for manipulatives/materials, and
- any Virginia licensure regulations and standards of practice including ethical obligations (i.e., training of examiner).
For initial eligibility determination, a hearing screening is required. If school staff are unable to complete a hearing screening, the team may ask parents if there is any existing hearing screening data from the child’s pediatrician. Prior to conducting hearing screenings using teleservices, professionals should consider the interactive software and other technology requirements, age of the student, training and support required for the facilitator, and other factors. A study by Lancaster et.al. (2008) suggested that school hearing screenings may be provided using telehealth technology.
The health and safety of students, families, and educators should be of primary concern. A careful review of all Virginia Executive Orders should be completed prior to considering the administration of traditional in person administration of assessments while schools are closed.
44. Does a Physical Therapist need a physician referral to see a student with a temporary learning plan?
The statutes governing the practice of physical therapy (under the Board of Physical Therapy) state that “a licensed physical therapist may provide, without referral or supervision, physical therapy services to… (iii) special education students who, by virtue of their individualized education plans (IEPs), need physical therapy services to fulfill the provisions of their IEPs (§ 54.1-3482.G.iii).” If physical therapy services were included in the last agreed upon IEP that was in effect when schools were closed, then the physical therapist may continue to work as part of the IEP Team and provide services to the student in accordance with the existing IEP, a revised IEP, or a temporary learning plan.
45. May related service providers offer treatment or evaluate students who are sheltering in homes outside of Virginia?
Professionals licensed by the Virginia Department of Health Professions (e.g., SLP, OT, PT, Audiology, Behavior Analysts, Psychologists) are licensed to provide services within Virginia. In order to deliver services or conduct assessments with students who are sheltering out of state, the professional must adhere to the laws and regulations for the state in which the student is located at the time of the services. Virginia Executive Order #57 states that “Health care practitioners with an active license issued by another state may provide continuity of care to their current patients who are Virginia residents through telehealth services.” Prior to evaluating or treating a Virginia student who is sheltering in another state, professionals should contact the licensing board of that state to determine if they have a similar provision. If no exception exists, services cannot be provided until the provider is licensed in that state.
46. Do OT and PT providers need a separate informed consent form to provide OT and PT services using telepractice?
Informed consent for telepractice is specifically discussed in Virginia Department of Health Profession’s guidance documents for Occupational Therapy (85-12) and Physical Therapy (112-21). Both guidance documents suggest that documenting appropriate patient informed consent for the use of telemedicine services must be obtained and maintained, but do not specify the use of a single document. Documentation required for compliance with IDEA may satisfy some of the items listed in Virginia OT and PT guidance on informed consent for teleservices. For example, a special education meeting invitation may be sufficient to document “Identification of the patient, the practitioner, and the practitioner’s credentials.” Furthermore, the Procedural Safeguards documentation provided to all families includes assurances of confidentiality and the “Requirement for express patient consent to forward patient-identifiable information to a third party.” Professionals should discuss with families the “types of activities” that will be completed and if the “condition being treated is appropriate for a telemedicine encounter.” This information may be documented in service logs, IEP amendments, or temporary learning plans.
LEA communication to families regarding services during school closures may provide additional documentation for informed consent. Communication regarding the technology platforms used by the LEA may already mention “Details on security measures taken with the use of telemedicine services” and “potential risks to privacy” and information on “technical failures.” It is important to note that existing state guidance on security measures for telepractice should be interpreted with consideration of the federal guidance on HIPAA relaxation of enforcement during COVID-19.