COVID Special Education Technical Assistance Advisory 2020-2

Implementation of Special Education Timelines During the COVID-19 State of Emergency

To:	Superintendents, Administrators of Special Education, Other Education Personnel, Students, Families, and Other Interested Parties
From:	Russell Johnston, Senior Associate Commissioner, Massachusetts Department of Elementary and Secondary Education
Date:	May 21, 2020

Due to the COVID-19 pandemic, on March 15, 2020, Governor Baker issued an Order requiring all public and private schools in the Commonwealth to suspend normal, in-person instruction and other educational operations from March 17 through April 6, 2020. The period of school closure was subsequently extended through the end of the school year or June 29, 2020.

The Department of Elementary and Secondary Education ("the Department") recognizes these unprecedented circumstances and the difficulties districts and families currently face. Health and safety are of utmost importance and the Department developed this guidance to assist schools and districts in meeting the needs of their students within the requirements of federal and state special education laws that prescribe timelines and procedures for action. While federal and state special education timelines remain in effect, the U.S. Department of Education has acknowledged that ability to meet timelines in the Individuals with Disabilities Education Act (IDEA) is impacted by the current situation, and has stated that "as a general principle, during this unprecedented national emergency, public agencies are encouraged to work with parents to reach mutually agreeable extensions of time, as appropriate."¹

In this context of the federal and state legal requirements and the current public health emergency, the Department offers the following guidance in order to promote the most effective practices related to annual review Team meetings, evaluations and early childhood special education during this period of suspended in-person services while also reducing potential compliance issues. To promote these effective practices, the Department has included Attachment A to this document as suggested sample language for communication with parents.

The processes for annual review Team meetings, initial evaluations, reevaluations and transition to early childhood special education described below are focused on equitable access guided by the following principles: 1) student-centeredness; 2) communication and transparency; 3) parent engagement; and 4) documentation.

The Department recognizes that schools and districts may have already developed and implemented new processes and procedures regarding Team meetings and evaluations addressed in this guidance that are responsive to the current situation and are focused on meeting students' individual needs. This guidance does not require that schools and districts send revised notices to parents nor rescind decisions regarding timelines and related activities, provided that the decisions regarding Team meetings and evaluations were individualized based on the needs of each student and made in collaboration with the students' parents.

Key Considerations Applicable to Annual Review Team Meetings, Initial Evaluations, Reevaluations and Transition to Early Childhood Special Education

There are several key considerations for annual review Team meetings, initial evaluations, reevaluations and transition to early childhood special education; these considerations are focused on the individual needs of the student and require clear communication with the parent.

Schools and districts must not communicate or implement any blanket policies that preclude Team meetings or evaluations from occurring or altering the Team process described in federal and state statutes and regulations, e.g. the district cannot have a policy or practice that suspends all annual review Team meetings or evaluations until students return to school.
Schools and districts cannot require a parent to waive procedural rights when agreeing to an extension of timelines or in order to have a virtual meeting.
If the school or district is seeking an extension of evaluation or Team meeting timelines, the district should communicate the reasons for proposing an extension and engage in collaborative decision-making with the parent about how to proceed, prior to sending documentation.
In documenting parental agreement to an extension, a Notice of Proposed School District Action (N1 ) or other form of written confirmation of agreement, such as an email, are allowable forms of documentation. The school or district should record discussions with the parent, outlining reason(s) for the extension with the anticipated date on which the meeting or evaluation may occur.²
For parents who do not speak English, schools and districts must communicate in the parent's native language, providing interpreters and translating documents where required.
In communications with the parent, schools and districts must use language that is understandable to the general public.
Schools and districts should use multiple modes of communication, such as written notice, email and telephone calls.
Schools and districts should assist parents in resolving technology-related barriers.
Wherever possible, districts are encouraged to hold Team meetings and conduct evaluations during the summer to mitigate the backlog when schools resume in-person operations.

Annual Review Team Meetings

In accordance with the IDEA regulation at 34 CFR § 300.324(b)(1)(i) & (ii) and Massachusetts state regulation at 603 CMR 28.04(3), schools and districts are required to review the IEPs and the progress of each eligible student at least annually. The Department recognizes the difficulties districts may face in convening the Team for an annual review and difficulties parents may face in participating remotely. As a result, a parent may ask to postpone the annual review Team meeting until the meeting can be held in-person. In all cases where the Team is unable to convene, the stay-put IEP remains in effect.

If the school or district is able to hold the annual review Team meeting within the required timeline, the school or district should contact the parent to ensure the parent agrees to participate in a Team meeting virtually or telephonically. If the parent agrees to participate, the school or district should issue the Team Meeting Invitation (N3 ) and Attendance Sheet (N3A ) by mail, email, or other electronic means (i.e., the parent's preferred method of communication) and conduct the annual review Team meeting remotely.

If the school or district cannot hold the annual review Team meeting within the required timeline and the parent agrees to an extension

The school or district should communicate with the parent to discuss the delay, reasons for delay, and plan to convene the Team outside of the timeline. If the parent agrees to extend the timeline for the annual review Team meeting, obtain agreement to the extension in writing from the parent through mail, email, text message, or other electronic means. Alternatively, if the parent provides agreement orally to the extension, the school or district must create a detailed record of the verbal agreement (i.e., date, time, mode of communication, and agreement). Following receipt of the agreement, the school or district should issue notification to the parent, either through the N1 or other form of written communication, that documents the mutually agreed-upon extension, reasons for the extension and date as to when the meeting is rescheduled.

It is important to notify the parent that they do not have to agree to an extension.

If the school or district cannot hold the annual review Team meeting within the required timeline and the parent does not respond to the district's request for an extension

If the school or district has made multiple attempts to communicate with the parent in the parent's native language using a variety of methods, such as phone, mail or email, and the parent has not responded to the outreach, the school or district should issue the N1 or other form of written communication that documents the attempts to communicate with the parent, reasons for the proposed extension and the anticipated date when the meeting is likely to occur. To help ensure that parents are able to access communication from the school or district, it is important to ensure that the communication is provided in the parent's native language and that the district is using language understandable to the general public.

If the school or district can hold the annual review Team meeting within the required timelines but the parent does not respond to the district's communications

If the school or district has made multiple and extensive attempts to communicate with the parent in the parent's native language using a variety of methods, such as phone, mail or email, and the parent has not responded to the outreach, IDEA regulations at 34 CFR § 300.322(d) contemplate that the school or district may conduct the meeting without the parent if the school or district documents the records of the telephone calls made or attempted and the results of those calls, retains documentation of the correspondence sent to the parents and any response received as well as detailed records of attempted visits made to the parent's home or place of employment and the results of those visits.

If the school or district cannot hold the annual review Team meeting within the required timeline and the parent does not agree to an extension

If the school or district is unable to conduct the annual review Team meeting within the required timeline but the parent has not agreed to an extended timeline following discussion with the school or district, the school or district should document the communication with the parent, including the parent's stated reason(s) for disagreeing with the request to extend timelines, as well as the specific reasons that the school or district is unable to hold the annual review Team meeting within the required timeline. The school or district should issue the N1 with the Parent's Notice of Procedural Safeguards . The full range of dispute resolution mechanisms, including mediation, is available to parents and districts.

Additional Considerations for Annual Review Team Meetings

The annual review Team meeting may occur even when the student's full Team is unable to participate as long as Team members are excused in accordance with 34 CFR § 300.321(e), which sets forth that:

Members of the Team must attend Team meetings unless:

The district and parent agree, in writing, that the attendance of the Team member is not necessary because the member's area of the curriculum or related services is not being modified or discussed; or
The district and the parent agree, in writing, to excuse a required Team member's participation and the excused member provides written input into the development of the IEP to the parent and the IEP Team prior to the meeting.

Please note that written agreement to excuse a Team member can be obtained through mail, email, text message, or other electronic means.

Schools and districts must ensure that, when required, students are able to participate in the remote annual review Team meeting process, particularly students between the ages of 14–22. Students must be invited and encouraged to attend part or all of the Team meeting in which transition services are discussed or proposed, even if the meeting occurs virtually or by phone.

Schools and districts may need to engage in student-centered planning and scheduling of virtual Team meetings. Student-centered questions that may assist districts in prioritizing include:

Is the student in crisis?
Is the student transitioning between schools, programs, etc.?
Is the student unable to access instruction and services?
Does the student have a rejected or partially rejected IEP?
Did the parent reject the request to extend the timeline?

Evaluations

Key considerations for initial evaluations and reevaluations

School Working Days and School Days

In accordance with 603 CMR 28.04(2) and 603 CMR 28.05(1), schools and districts must complete evaluation assessments within 30 school working days of receipt of parental consent and convene the IEP Team within 45 school working days. In addition, with regard to independent education evaluations in 603 CMR 28.04(5)(d) & (f), the district must either agree to pay for the evaluation or proceed to the Bureau of Special Education Appeals within 5 school days and the Team must reconvene to consider the independent education evaluation within 10 school days from the receipt of the independent education evaluation report. The term "school working days" or "school days" is not a term included in any other state or federal special education timelines or other laws applicable to the provision of a free and appropriate public education (FAPE). Massachusetts special education regulations define "school day" as "any day, including a partial day, that students are in attendance at school for instructional purposes." 603 CMR 28.02(5). Because of the varied dates when schools and districts began providing remote instruction to students and in keeping with Commissioner Riley's guidance on remote learning models and the provision of remote instruction, for the purpose of the initial evaluation, reevaluation, independent education evaluation, and eligibility IEP Team meeting regulatory timelines only, the Department considers the school working days or school days to have paused from March 17, 2020, the first day of school closures in Governor Baker's Order, through April 9, 2020, when schools and districts were expected to have launched remote learning models and instruction per Commissioner Riley's remote learning recommendations. Those days would not be counted toward the 30 or 45 "school working days" in 603 CMR 28.04(2) and 603 CMR 28.05(1) or the 5 and 10 "school days" pertaining independent education evaluations in 603 CMR 28.04(5)(d) & (f). This provision narrowly focuses on those regulations and cannot be applied toward any other issue related to special education timelines.

Conducting Assessments

When a referral for an evaluation is received, the school or district must send written notice by mail or email to the parent within five days of receipt, in accordance with 603 CMR 28.04(1)(a).
Schools and districts may need to prioritize evaluations; questions to ask in prioritizing evaluations include:
- Was the evaluation started prior to school closure?
- Was the signed consent received prior to closure?
- Is the student transitioning between schools, programs, etc.?
When in the best interest of the student, the Department recommends that schools and districts conduct assessments remotely. If assessments require in-person observation or face-to-face administration, assessments may need to be delayed until they are able to be done in-person. The Department recognizes that not all assessments may be conducted virtually, as a remote evaluation may invalidate results.
Schools and districts should use professional judgment in determining whether to conduct a specific assessment; based on professional judgment, it may be determined that an assessment or parts of an assessment may be conducted remotely. Factors involved in professional judgment and supporting a determination as to whether an assessment can be conducted remotely include:
- Referring to guidance of the relevant professional organization of the particular evaluator conducting the assessment at the state or national level.
- Relying on evaluators as to whether an entire assessment or parts of an assessment may be conducted.
- Taking into consideration current knowledge and circumstances of the student and making individualized decisions.
- Consulting with the special education administrator.
- Considering the use of alternative assessment tools to assess all areas of suspected disability.
- Continuing to monitor for developments in the manner assessments can be conducted remotely and, as developments emerge, revisit earlier decisions not to assess, as appropriate.
In addition to assessments that can be completed, consider other information, such as tiered system of support data, or other information provided or available to the district, and develop a partial IEP if there is enough information to make an eligibility determination and the Team determines that sufficient information is available to identify some necessary services and goals. Any additional necessary evaluations would then be completed through the extended evaluation process.
In order to allow the parent to participate fully in the Team meeting, the school or district must provide summaries of assessments by mail or email to ensure receipt at least two days prior to the Team meeting, in accordance with 603 CMR 28.04(2)(c).

Initial Evaluations and Reevaluations

When schools and districts are able to conduct relevant assessments remotely, they need to communicate with the parent to discuss the remote assessment process and determine whether the parent still seeks to move forward with the evaluation. A parent may opt to postpone the evaluation until it can be conducted in person. If the parent agrees to the remote assessment process, issue the Notice of Proposed School District Action (N1 ) and Evaluation Consent Form (N1A ) by mail or email (or in the parent's preferred mode of communication), if these have not been sent already. Parental consent for evaluations may be provided through mail, email, text message, other means of electronic communication, or phone call/voicemail. If the parent provides consent orally, the school or district must create a detailed record of the conversation or message (i.e., date, time, mode of communication). Upon receipt of parental consent, conduct the assessments remotely and issue the Team Meeting Invitation (N3 ) and Attendance Sheet (N3A ) by mail or email, conducting the Team meeting virtually or by telephone.

If the school or district cannot conduct all of the relevant assessments remotely and the parent agrees to extend the timeline for completion of the evaluation

If the parent agrees to extend the timeline for completion of an initial evaluation or reevaluation, the school or district should communicate and collaborate with the parent discussing which assessments will be conducted and reach an agreement about extending the time for conducting the remaining assessments. Issue the N1 and N1A by mail or email documenting which assessments will occur as well as the mutually agreed-upon extension. For initial evaluations, if some of the assessments have been conducted, the Team may have sufficient information to develop a partial IEP, which should be implemented upon acceptance by the parent, in accordance with 603 CMR 28.05(2)(b)(1). Any additional necessary evaluations would then be completed through the extended evaluation process. Due to the unprecedented nature of this emergency, if the district has not had the opportunity to conduct its own evaluation but is presented with relevant student data related to the area of suspected disability, the district is encouraged to consider those sources and determine next steps as appropriate.

If the school or district cannot conduct all of the relevant assessments remotely and the parent does not respond to the district's request to extend the evaluation timeline

If the school or district has made multiple attempts to communicate with the parent in the parent's native language using a variety of methods, such as phone, email and mail, and the parent has not responded to the outreach, the school or district should issue the N1 or other form of written communication that documents the attempts to communicate with the parent, reasons for the proposed extension and anticipated timeframe as to when the evaluation is likely to occur. To help ensure that parents are able to access communication from the school or district, it is important to communicate in the parent's native language, using terms understandable to the general public.

If the school or district cannot conduct all of the relevant assessments remotely and the parent does not agree to the district's request to extend the evaluation timeline

If the school or district is unable to conduct the evaluation within the required timeline but the parent has not agreed to an extended timeline following discussions with the school or district, the school or district should document the communication with the parent, including the parent's stated reason(s) for disagreeing with the request to extend timelines, as well as the specific reasons that the district is unable to conduct the evaluation. The school or district should issue the N1 with the Parent's Notice of Procedural Safeguards . The full range of dispute resolution mechanisms, including mediation, is available to parents and districts.

Additional Considerations for Reevaluations

It is essential that assessment information contributes to decisions around educational programming; students should not undergo testing that is duplicative or unnecessary.
Parents may agree to waive some or all of the assessments, in accordance with 603 CMR 28.07(2)(b), and rely on data that already exists to inform the reevaluation process. These data may include a review of student records, most recent assessments, or a recent independent educational evaluation.

Early Childhood Special Education (ECSE)

The Department recognizes there are unique problems for schools and districts in determining eligibility for children who are potentially eligible for ECSE. Children can be referred for ECSE services through: 1) referrals from child find activities; and 2) referrals from Early Intervention (EI).

Referrals from Child Find activities

Schools and districts are responsible for continuing to engage in child find activities for all students, including young children, while following current COVID-19 public health guidelines. As children are identified as being potentially eligible for ECSE, the initial evaluation guidance described above applies for young children who are referred for special education evaluation.

Referrals from Early Intervention (EI)

For children transitioning out of EI, transition planning occurs as part of a child's Individualized Family Service Plan (IFSP). The transition plan outlines the steps to be taken and services necessary to support the child when the child turns three and exits EI. EI program staff, with approval of the parent, convene a Transition Planning Conference (TPC) that includes the parent and a representative of the child's school district of residence, at least 90 days and — at the discretion of the parties — up to nine months before the child's third birthday. The purpose of the TPC is to review the child's EI services and development, discuss options and services for once the child leaves EI, and establish or review transition activities.

For some young children referred by EI to schools and districts for evaluation, existing evaluation documentation, assessments, or other diagnostic information, as well as the IFSP, may clearly establish the child's eligibility for early childhood special education. During this period of public health emergency, it is recommended that the IEP Team review existing evaluations to determine eligibility.

If assessments cannot be completed, and the child has been identified as potentially eligible for ECSE and referred by EI, the following special considerations should be discussed with parents:

The school or district may provide remote learning opportunities in your district's general education preschool, if available.
The school or district may consult with Regional Consultation Program (RCP) specialists to provide resources to families and/or school districts.
The school or district may connect with Coordinated Family and Community Engagement (CFCE) grantees for families to receive supports and virtual playgroup opportunities.
The school or district should collaborate with local EI programs to support the child's transition from EI. With agreement by the parent, EI programs may complete additional assessments that may facilitate the process for determining eligibility. The EI program may request a waiver from the Department of Public Health so that the EI program can continue to support the child and the family during transition. This support may include updating assessments and making additional referrals to child serving agencies. The waiver is not intended for the continuation of IFSP services after the child's third birthday.

Conclusion

While the COVID-19 public health emergency has required districts and families to consider new ways of working through the processes set forth in this guidance, the health and safety of educators, students and their families remain of primary importance. It is not yet clear when or how each school or district will reopen to students, and several of these practices are likely to remain in effect into the next school year. The Department encourages schools and districts to continue collaborating and working closely with families in making decisions regarding special education.

¹ United States Department of Education, Office of Civil Rights and Office of Special Education and Rehabilitative Services, Supplemental Fact Sheet, March 21, 2020, at p. 4.

² The school or district must communicate to the family any subsequent need for rescheduling from the selected date.

Last Updated: May 22, 2020