On March 16, 2020, the United States Department of Education, Office of Civil Rights (OCR) put out a Fact Sheet on steps schools should take during school closures due COVID-19, while protecting students’ civil rights.
One area OCR addressed was evaluations. OCR stated:
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. (emphasis added).
The New York State Education Department (NYSED) released a memorandum on March 27, 2020 that closely mirrors OCR’s federal guidance, with similar language regarding evaluations and re-evaluations. However, NYSED reminded schools that in New York, initial and re-evaluations can occur by “reviewing existing evaluation data” if no new evaluations are needed, as per New York Regulation 200.4(b)(5):
Evaluations and reevaluations, including bilingual evaluations, that do not require face-to-face assessments or observations may take place while schools are closed, if the parent consents. If an evaluation of a student with a disability requires a face-to-face meeting or observation, the evaluation would need to be delayed until school reopens. A reevaluation may be conducted by reviewing existing evaluation data. This review may occur without a meeting and without obtaining parental consent, unless it is determined that additional assessments are needed.
If your child was or is supposed to be scheduled for initial evaluations or re-evaluations to determine IEP or 504 eligibility, these will likely now be delayed. While we at the Cuddy Law Firm understand how critical timely evaluations are, this is a time when working together with your school and understanding these evaluations might not be conducted timely is warranted. If your child was supposed to be receiving evaluations during this time, we suggest contacting your school (if they have not contacted you already) to discuss what if any evaluations can be done now, virtually or over the phone. Then, you can determine if you would want to have those evaluations conducted in that manner, or to wait until those evaluations can be conducted in person.
We understand these are not easy decisions or situations, especially when trying to determine services and programs for students with special needs. If you have any questions during this time, we are here to assist you and your family.