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November 2, 2021

Please join Nelson Mullins Riley & Scarborough for the 2021 South Florida Health Forum taking place on November 2 in Fort Lauderdale, FL. We look forward to reconnecting with you after a year away from our annual event!

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July 1, 2020

US DOE Issues Updated IDEA Guidance Amidst COVID-19 Back-to-School Planning

By Sherry Culves, Neeru "Nina" Gupta

The US DOE Office of Special Education and Rehabilitative Services and Office of Special Education Programs has released a series of updated guidance documents relating to compliance with the Individuals with Disabilities Education Act (IDEA).  This includes guidance on procedural safeguards under Part B and Part C of the IDEA; guidance on State and Local Educational Agency (LEA) fiscal requirements and the use of IDEA funds under Part B and Part C in response to the COVID-19 pandemic. 

Procedural Safeguards

  • Electronic Signatures and Consent: The guidance advises that electronic signatures from parents/guardians may be used to obtain informed consent relating to initial evaluations, reevaluations, initial provision of special education and related services, as well as the release of personally identifiable information from student educational records.  In order for electronic signatures to be accepted, LEAs must have appropriate safeguards in place. In addition to traditional safeguards, these should include that (1) the electronic signature “identifies and authenticates a particular person as the source of the electronic consent,” (2) the electronic signature “indicates such person’s approval of the information contained in the electronic consent,” and (3) a statement is included that indicates that the parent has been fully informed of the relevant activity and that the consent is voluntary on the part of the parent.  
    • Nelson Mullins’ Practical Tip – When requesting “electronic consent” from parents, send them an email that fully informs the parents of the matter being consented to, along with a statement such as:  “If you consent to ___(describe the action at issue)___, please respond to this email by including the statement ‘I consent’ followed by your full name.  By responding with ‘I consent’ you are agreeing that the District can use your email as consent, that you have been fully informed of the relevant information, and that your consent is voluntary.”   
  • Prior Written Notice (PWN):  The US DOE advised that PWN may be delivered to parents/guardians via email if the parent agrees to this method of communication.  The DOE reminded LEAs that PWN is required a “reasonable time” before it proposes or refuses to initiate or change the identification, evaluation, educational placement of the child, or the provision of a free appropriate public education (FAPE)  The DOE did not give any further guidance on whether and when PWN is required in response to the COVID-19 pandemic, except encouraging LEAs to ensure that parents are fully informed of how their child’s special education and related services are being addressed during remote learning.  
    • Nelson Mullins’ Practical Tip – While most schools were left scrambling in the spring when school buildings closed down suddenly due to COVID-19, as we gear up for fall, Districts should be more purposeful in holding IEP meetings and providing PWN for students who have a change of placement as a result of COVID-19 disruptions or a parent’s choice to return to school via virtual format. 
  • Procedural Safeguards Notice: The US DOE reminded LEAs of the obligation to provide a copy of the procedural safeguards notice once a year (e.g. at the annual review) and upon an initial referral or parent request for evaluation; upon receipt of the first State DOE Complaint or Due Process Hearing Request in a school year; in accordance with discipline procedures; and upon parental request.  LEAs may provide procedural safeguard notices to parents through email if the parents agree.  
    • Nelson Mullins’ Practical Tip – School Districts should confirm that email is an acceptable form of delivery during the course of IEP meetings or conference calls.  School Districts who have a history of communicating with a family by email may send Procedural Safeguards Notices (and any other relevant IDEA documents) to the family along with a statement asking the family to advise the District if they would also like a copy sent via postal mail. 
  • Access to Educational Records:  The US DOE also reminded LEAs of the obligation to respond to parental requests for educational records without unnecessary delay, including before any IEP meeting, Due Process Hearing, or Resolution Session, and in no case more than 45 days after the request has been made.  The US DOE advises that LEAs work with parents to “mutually agree” on options to meet these requirements while school buildings are closed.  If parents agree, LEAs may transfer records via email, secure on-line portal, or postal mail, but LEAs must ensure that there are reasonable safeguards in place to protect the transmittal through these electronic means.  
    • Nelson Mullins’ Practical Tip – Consider password protecting and confirming email addresses in advance of transmittal.  Additionally, in the event that some educational records are not readily available due to building closures, work with the family to provide all centrally stored/electronic records first and be transparent with families about the remaining records still needed to be compiled and the reason for the delay. 

Fiscal Requirements

  • State Funding:  While doing nothing to change LEAs’ obligations to continue to provide FAPE to all students with disabilities (SWDs), the US DOE paved the way for states to reduce financial support for special education and SWDs in response to statewide revenue losses and broad education cuts.  The US DOE has identified that it will grant waivers to states’ maintenance of financial support requirements allowing states to spend less on special education and students with disabilities than the preceding fiscal year if (1) granting a waiver would be equitable due to exceptional or uncontrollable circumstances such as a natural disaster or a precipitous and unforeseen decline in the financial resources of the state; or (2)  the state meets the standards in 34 CFR § 300.164 for a waiver of the requirement to supplement, and not supplant, IDEA Part B Funds.  (These latter requirements all deal with the continuous provision of FAPE to all eligible students in the state).  

    In addition, the US DOE gave states the flexibility to establish compliance with the maintenance of financial support obligations by showing either (1) the total dollar amount was at least equal to the total dollar amount of the previous year, or (2) the per capita amount was at least equal to the per capita amount of the previous year.
  • LEA Spending
    • Maintenance of Effort (MOE): The US DOE reminded LEAs of the following five exceptions to their MOE requirements under the IDEA: (1) The voluntary departure, by retirement or otherwise, or departure for just cause, of special education or related services personnel; (2) A decrease in the enrollment of children with disabilities; (3) The termination of the obligation of the LEA to provide a program of special education to a particular child with a disability that is an exceptionally costly program, as determined by the State educational agency (SEA), because the child (a) has left the jurisdiction of the agency; (b) has reached the age at which the agency’s obligation to provide a free appropriate public education to the child has terminated; or (c) no longer needs the program of special education; (4) The termination of costly expenditures for long-term purchases, such as the acquisition of equipment or the construction of school facilities; and (5) The assumption of cost by the high cost fund operated by the SEA under 34 C.F.R. § 300.704(c).

      If none of these exceptions apply, an LEA may meet the MOE obligations by using any of the following four methods: (1)  total amount of State and local funds; (2) State and local funds on a per capita basis; (3) total amount of local funds only; or (4) local funds only on a per capita basis. The US DOE advised that LEAs may want to consider using this last method to meet their MOE requirements if state funds available for the education of children with disabilities are reduced.
    • Excess Costs:  The US DOE refused to provide any flexibility for LEAs concerned with meeting the excess cost requirements under the IDEA.  To meet the excess cost requirement, LEAs must spend at least the average annual per pupil expenditure (APPE) in the preceding year before using IDEA Part B funds to pay for the excess costs of providing special education and related services to students with disabilities. The APPE is calculated separately at the elementary and secondary school levels. However, if an LEA expends less funds on the education of all students (including students with disabilities), and if the APPE is then reduced, the amount the LEA must expend on students with disabilities to meet the excess cost requirement would also be reduced.
  • Use of IDEA Part B Funds in Response to COVID-19: The US DOE reiterated that Part B funds may be used to disseminate health and COVID-19 information specifically related to students with disabilities (SWDs); to develop emergency plans for SWDs; to provide information to parents and staff regarding the coordination of special education and related services; and to engage in activities necessary to resume services to SWDs. LEAs may also purchase equipment and other assets (such as software, mobile hot spots, or 1-1 devices like laptops or tablet) in order to support remote learning platforms for students with disabilities. However, Part B funds may not be used to purchase equipment that is being provided to all students to facilitate remote learning, such as laptops distributed to an entire school. To the extent that SWDs require additional equipment (like assistive technology), IDEA funds may be used.  Traditional procurement, record keeping, and cost principles still apply. State agencies and LEAs must also follow IDEA procedures governing when prior approval of expenditures is required and for disposal of equipment purchased with IDEA funds. 

Nelson Mullins' Education Team will continue to keep you informed about legal developments affecting K-12 schools, including compliance with the IDEA in light of COVID-19 and recent developments. If you have questions or would like to discuss your agency’s compliance, please contact Sherry Culves, Nina Gupta, or any of the members of Nelson Mullins’ Education Team

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