On June 30, 2020, the Office of Special Education Programs (OSEP) within the U.S. Department of Education issued two documents in response to inquiries about the implication of the procedural safeguards in the Individuals with Disabilities Education Act (IDEA) in the current COVID-19 environment. IDEA demands specific procedural safeguards for agency activities, and the documents suggest that agencies may accept electronic signatures and provide electronic notice with appropriate safeguards rather than hard copy materials.

Parental Consent
This section applies to public agencies that need parental consent for a child’s initial evaluation, reevaluation, or initial provision of special education and related services for the child, or to disclose personal identifiable information (PII) from the child’s education records. The Parental Consent section also applies to State Lead Agency (State LA) and Early Intervention Service (EIS) providers that need parental consent under Part C of IDEA for screening purposes or to disclose PII from the child’s early intervention records. The agency may accept electronic or digital signatures provided it adopts the appropriate safeguards. Proper safeguards include that the electronic signature (1) is signed and dated, (2) identifies and authenticates a particular person as the source of the electronic consent, (3) indicates such person’s approval of the information contained in the electronic consent, and (4) is accompanied by a statement that the person understands and agrees.¹

Prior Written Notice & Procedure and Safeguards to Notice
If a parent has previously agreed or agrees during the pandemic, public agencies and the State LA or EIS providers can use email rather than hard copy mail to deliver prior written notice and procedural safeguards within a reasonable time before taking certain actions.² 

Access to Records
In light of social restrictions and the closings of schools and many public facilities, for public agencies to comply with a parent’s request to inspect and review his or her child’s education records, or for State LA or EIS providers to comply with a parent’s request to inspect and review his or her infant’s or toddler’s early intervention records, parents and agencies may identify a mutually agreeable timeframe and reasonable method for providing access to the records. Possible methods include email, a secure online portal, and postal mail.

Conclusion
More COVID-19 information and resources for school and school personnel are available on the U.S. Department of Education’s website. Taft strives to provide legal updates on issues impacting our clients. Please reach out to us with any questions or if we can be of assistance in these unprecedented times.

Please visit our COVID-19 Toolkit for all of Taft’s updates on the coronavirus.

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¹ U.S. Department of Education, IDEA Part C Procedural Safeguards (2020)

² See 34 C.F.R. § 300.503 (public agency) and § 303.421 (State LA or EIS provider) for actions that require written notice.