On August 24, 2021, the United States Department of Education's (“Department”) Office of Special Education and Rehabilitative Services (“OSERS”) issued a letter acknowledging that children with disabilities and their families have been disproportionately affected by the pandemic compared to their peers without disabilities.  The letter reiterates the Department's commitment to ensuring children with disabilities and their families have successful early intervention and educational experiences during the 2021-2022 school year.

In the letter, OSERS announced the release of a series of Q&As addressing the return to in-person learning during the 2021-2022 school year, which are intended to support the full implementation of the Individuals With Disabilities Education Act (“IDEA”) requirements by state educational agencies, local educational agencies (“LEA”), lead agencies, and early intervention service providers.  The Q&As are part of the Department's “Return to School Roadmap.”  They focus on topics to help ensure that, regardless of the pandemic or the mode of instruction, children with disabilities receive a free and appropriate public education (“FAPE”) in accordance with IDEA and that infants and toddlers with disabilities and their families receive appropriate early intervention services. 

The first in the Q&As series, also issued on August 24, 2021, is entitled Return to School Roadmap:  Child Find Under Part B of the Individuals With Disabilities Education Act and reaffirms the importance of the appropriate implementation of IDEA's child find obligations.  Child find requires the identification, location, and evaluation of all children with suspected disabilities.  Interestingly, the Q&As specifically mention that long COVID or other post-COVID conditions could meet the definition of “disability” under IDEA, adding yet another layer to child find requirements during the pandemic and beyond.

An effective child find system is an ongoing part of a state's responsibility to ensure that FAPE is made available to all eligible children with disabilities.  As noted in the Q&As, given the challenges posed by the pandemic for the 2021-2022 school year, states and LEAs need to evaluate whether their current child find procedures are sufficiently robust to ensure the appropriate referral and evaluation of children who may have a disability under the IDEA.  The Q&As discuss how an LEA could use new federal funding to support its child find efforts and bring them up to speed during these unprecedented times.

The upcoming Q&As can be expected to provide guidance regarding school reopening efforts in keeping with IDEA requirements, such as:

• Meeting timelines;
• Ensuring implementation of initial evaluation and reevaluation procedures;
• Determining eligibility for special education and related services;
• Providing the full array of special education and related services, including compensatory services, for students with disabilities to ensure they receive a FAPE; and
• Delayed evaluations and early intervention services to infants and toddlers with disabilities and their families served under IDEA Part C.

Finally, it is important to note that the Q&As do not impose any additional requirements beyond those included in applicable laws and regulations.  The Q&As are informal guidance representing the Department's interpretation of the applicable statutory or regulatory requirements and are not legally binding.

Parker & Covert LLP has extensive experience handling special education matters.  Should you have any questions or need assistance in reviewing your district's child find procedures, please do not hesitate to contact us via email or phone.