It’s been 3 weeks. Let’s have some straight talk. The terms “enrichment,” “educational services,” “continuity of learning,” and many others are melting your brains at this point. You and your staff just want to know: “How can we best serve students while complying with our legal, ethical, and moral convictions?” The difficulty in answering that question is compounded by the fact that most state and federal leaders have said they expect schools to remain closed for the remainder of the school year, or longer.
As schools come to terms with the fact that they will not be back in session for the fourth quarter, educators are fighting their instincts to hustle and provide educational services, while recognizing their obligations to all students. There are many barriers to overcome in moving to a completely virtual education model--or makeshift model, if we’re being honest. One of the most intractable challenges has been the issue of how districts would comply with the IDEA, in addition to equity issues of many kinds, like access and resource disparities.
So, what exactly are “enrichment” activities compared to “educational services” that trigger our FAPE obligations?
Good question!
The majority of school districts around the country decided at the outset that they would not provide educational services to students during the closure, or decided to get more information before trudging forward with educational services. This decision was based in large part on the enormous practical difficulties with building a virtual school system on the fly, during a global pandemic, and amending dozens, hundreds, or thousands of IEPs. These districts were concerned about their obligations to special education students, not trying to blame them.
The first set of guidance from the Office of Special Education and Rehabilitative Services (OSERS) was clear:
If an LEA closes its schools to slow or stop the spread of COVID-19, and does not provide any educational services to the general student population, then an LEA would not be required to provide services to students with disabilities during that same period of time.
…
If an LEA continues to provide educational opportunities to the general student population during a school closure, the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE.
If a district “does not provide any educational services,” then it does not owe FAPE to special education students. While the subsequent “guidance” (discussed in the next question) does purport to provide flexibility (from OSERS/OCR) on how to implement FAPE, it does not change the more fundamental conclusion that if educational services are provided to general education students, then the requirements of FAPE apply. Based on this guidance and a common sense reading of cases resulting from other emergencies and catastrophes, there is a difference between providing services which seek to allow students to advance along the curriculum compared to supplemental, voluntary learning serving as enrichment opportunities. We believe this is where the distinction lies, though admittedly no regulatory agency has actually undertaken to draw this line with any certainty.
Didn’t the US Department of Education tell us we don’t have to worry about the IDEA and Section 504 Act, because they’ll be lenient? That these laws shouldn’t “stand in the way” of service students during school closures on a mass scale?
NO!
The Office for Civil Rights (OCR) and OSERS released a supplemental Fact Sheet on Saturday, March 21, 2020 addressing these issues. At first blush, that guidance seems to be definitive and empowering. In bold type, OCR and OSERS declare:
To be clear: ensuring compliance with the Individuals with Disabilities Education Act (IDEA) ... and Title II of the Americans with Disabilities Act should not prevent any school from offering educational programs through distance instruction.
The Fact Sheet goes on to make clear that OCR and OSERS are not actually excusing school districts from providing students with disabilities with a FAPE. Instead, the Fact Sheet simply says that schools may use technology to provide FAPE:
However, school districts must remember that the provision of FAPE may include, as appropriate, special education and related services provided through distance instruction provided virtually, online, or telephonically.
If a school district is going to offer its students educational services, they must continue to provide students with disabilities all the services that the student’s IEP team have said are necessary for FAPE. Those services are not excused, but they can be provided using other communication modalities -- including distance learning. This is not new -- IEP teams have always been free to provide supplemental services using telehealth and other technological methods. But those have typically been by choice, not by deadly pandemic restrictions.
School attorneys are warning about massive practical and procedural issues, because we understand and appreciate the rights of schools, parents, and students. If you perceive your school lawyer to be “holding you up,” you are misunderstanding our motivations. If a school district is going to provide educational services, thus triggering its obligation to provide FAPE to all of its special education students during this pandemic closure, it must provide those students with the full menu of services and service minutes that are called for in their IEPs--those IEPs in place prior to the closure. Any changes to those services, related services, and service minutes may be implemented ONLY (a) with written parent consent or (b) after a full IEP meeting. This will require case managers across the country to modify millions of IEP documents. And all of this will need to be done before the student’s services change and within 10 days of the school offering educational services to its general population.
Now, if you are going to amend a student’s IEP during the closure, you can certainly do it by working collaboratively with the parents of the student and just agreeing to an amendment without a meeting. In those situations, you’ll need to send PWN to the families along with a copy of the revised IEP. On the other hand, if families won’t agree, you’ll need to convene an IEP meeting, amend the IEP (and if necessary implement those changes without parent agreement). That decision will also need to be supported by a PWN.
Guidance issued by NDE’s Office of Special Education on Sunday, March 22, 2020, reinforces this conclusion: “If the district continues providing education opportunities to students during the closure, this includes provision of special education and related services, too, as part of a continuity in learning plan.” So neither state nor federal regulators will just waive FAPE if you are doing “education” for typically-developing students.
We’re not saying OSERS, OCR, and state departments of education are leading schools astray--quite the opposite. They are trying to thread a needle from the perspective of enforcement agencies. But we do think you should understand the fact that they’re not the only ones who get to enforce the IDEA. While flexibility from state and federal regulatory bodies is helpful, they can’t control a judge, hearing officer, or administrative law judge any more than you can.
Well, we can just handle all these special education issues by offering compensatory education, right?
NO.
The Nebraska Q&A makes this explicit. It states, “This … does not allow a district to decline all services to students with an IEP and only offer compensatory services at a later date.” Cases from across the country make this clear, too.
The Fact Sheet states, “Where, due to the global pandemic and resulting closures of schools, there has been an inevitable delay in providing services – or even making decisions about how to provide services - IEP teams ... must make an individualized determination whether and to what extent compensatory services may be needed when schools resume normal operations.”
Notice that this does not excuse school districts’ obligations to provide special education during a closure so long as the school promises to make up for the missing services after school re-opens. Instead it says if a school delays services due to the pandemic, the IEP team must consider whether the delay needs to be remedied with compensatory education when the school reopens.
When school reopens, each student’s IEP team will need to consider whether that student needs some additional services as a result of the closure. The Nebraska Q&A explains, “Districts should communicate the expectation and plan to meet with Individualized Education Program (IEP) teams, including parents, when school resumes, to address student-specific needs resulting from the closure.”
The assumption that you can somehow reduce or ignore services during the closure simply because you plan to consider compensatory education has become a common misconception. Worse is the assumption that you can justify the excusal to provide services by promising to consider compensatory education on the front end.
Well, the Fact Sheet at Least Waived all of Our IDEA Timelines, right?
NO.
The Fact Sheet has an attachment that lists all of the IDEA timelines. It states, “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.” Then under each of the relevant timelines that are listed, the Fact Sheet makes clear that timelines may only be waived with parental consent. Schools are not automatically excused from their IDEA (and in Nebraska, Rule 51) timelines just because they are closed due to this national emergency.
Now, in Nebraska we have prided ourselves on the strong, collaborative relationships we build between schools and parents. And we are confident that the vast majority of parents will be happy to work with their local school districts to agree to workable timelines related to their children’s special education services. But do not let the headlines about the Fact Sheet fool you. School districts are still fully obligated to meet their IDEA timelines -- regardless of whether they are providing “enrichment” or full “education” to their students.
Speaking of “Enrichment” versus “Education,” the Nebraska Department of Education is requiring full educational services, right?
NO.
We have strong collaborative relationships with NDE, and we have worked closely with them throughout this crisis. To their great credit, NDE staff is trying to get you guidance as soon as possible, too. But many schools have gotten a false impression that they will not receive a waiver of Rule 10 requirements for accreditation unless they are offering “full educational services” that continue to move through the state standards and local district curriculum. That is simply not true.
The Commissioner has made it clear that he expects school districts to provide some sense of connection, community, and normalcy for students. He does not expect schools to march through state standards or provide explicit instruction to all students. The rush to treat this pandemic closure period -- however long it lasts -- as a mere shift in modality of instruction is going to leave schools exposed. To be candid, we think schools should start by considering the social and emotional needs of their community, and then move on toward academic work.
Let us be clear: We are not saying that schools should avoid providing full educational services to students. Nor are we joining the chorus of unhelpful voices attempting to shame schools into rolling out educational services triggering FAPE despite all the legal and practical issues that will entail. It is our job to give you options and support you in making the best decision you can for your individual district. Our fear is these options have not exactly been clear.
Understand that if you elect to provide full-blown “education” that you must also provide students with disabilities with FAPE which must be documented in each student’s IEP one way or another.
Got it -- If we are doing educational services triggering FAPE, we need to amend IEP documents. So if we are just doing enrichment, we don’t have to do any paperwork, right?
WRONG.
Our best reading of the laws and guidance is that you should provide PWN to every child with an IEP within 10 school days of your district’s closure (or, if it is just not feasible, as close to that 10 days as you can).
These PWNs are legally significant documents, so despite our efforts to provide schools what they need when we can, we cannot simply link them to this post. If your school district works with an attorney other than KSB, you should get their input on the version of PWNs that you send out, because those attorneys will be the ones defending you in a due process hearing or OCR investigation. Similarly, we doubt most schools will need only one PWN.
We have provided copies of sample PWNs to KSB clients who have requested them, and we will be happy to provide them to anyone else who requests them. You should be wary of anyone sharing “the” PWN to send in this chaotic time. These PWNs, even in draft form, constitute legal advice. We are charging a flat fee of $150 for the five sample PWNs and our instructions about how to use them. This is not because we are unwilling to share our expertise, but because we really need to have direct communication with all clients who will be using these forms for both the district’s and KSB’s protection.
Did you listen to the “continuity of learning” webinar?! What about all the other special education questions that we have?
We made it a point to make sure all of the KSB attorneys listened to the webinar hosted by the Nebraska Council of School Administrators on the afternoon of March 23, at which leaders from the Nebraska Association of Special Education Supervisors and officials from NDE spoke. The practical suggestions were excellent, and we enjoyed listening in to educators share how they are fearlessly tackling some of these issues locally. We kept a log of the questions on the chat, and we have done our best to provide thoughts on the legal questions:
What about extended school year services?
This question has come up repeatedly. Any student who has ESY in his/her current IEP is entitled to those ESY services. We all hope and pray that schools and ESUs will be back in full operation by June and July and able to provide those services. We don’t think you need to meet immediately about ESY services. That being said, if you are meeting to amend a student’s IEP soon anyway, the team could certainly address proactively what will happen if COVID-19 prevents the student from receiving ESY as initially planned.
We would also note that if a student has ESY listed in his/her IEP, that means the team has already determined that this student has issues with regression and recoupment after school breaks. The team should take that into consideration when they discuss that individual student’s need for compensatory education when the school reopens (we hope!) for the 2020-21 school year.
Do we have to complete minute for minute programming based on the IEP?
Yes, IF:
Your school district is providing educational services requiring FAPE; AND
The IEP team has NOT met to amend the student’s service minutes in the IEP; OR
The parents have NOT consented to amend the IEP to reduce those minutes without a meeting.
No, IF:
Your school district is providing non-graded enrichment only; OR
The IEP team has met to amend the student’s service minutes in the IEP; OR
The parents have consented to amend the IEP to reduce those minutes without a meeting
MDT/IEP/Evaluation timelines? How do we handle MDTs in progress?
The Fact Sheet makes clear that these timelines are not being waived. Repeat, there is no waiver of timelines in any law, guidance, or well placed promise of lenience.
Now, we fully believe NDE will not aggressively enforce timelines when they conduct file reviews and other compliance activities covering this COVID-19 outbreak time. However, parents and parent-side attorneys and advocates can (and absolutely are within their rights to) demand that schools meet their timelines unless the parents agree to waive them for an individual student.
Our best advice is to do your best to hold the MDTs that you can complete and to provide PWN to all families who have MDTs in progress which will not be able to be completed.
How should we be completing new IEPs? Do we complete them assuming they will start next year or using the programming that would have happened prior to the end of this school year?
If your school is providing educational services triggering FAPE, you should write the IEP to address both the services the student will receive during the closure and the services that will be provided after school reopens officially. You should anticipate the closure may last longer than the end of the 19-20 school year.
If your school is providing enrichment only, you will describe the services that the student will receive when school reopens.
The reality is that most IEP teams will need to reconvene when school reopens anyway, so keep that in mind before you stress too heavily about getting the wording exactly right in each plan.
How do we work with students who were in the process of moving but the school that they were going to register at was closed due to COVID 19?
The school district where students are located is the LEA. Even if that school is closed, that new district will be legally responsible for the education of those students when they move in (regardless of what state the new district is in).
Now if a student is “homeless” under the McKinney-Vento Homeless Students Act, the family will have the option of seeking services from their district of origin or the district in which they are currently located. You should confer with your school district’s attorney on specific issues that would arise in this circumstance.
What are the guidelines for MDT evaluations that cannot be completed?
Your best bet is to reach out to families now and see if they will agree to waive the deadlines. If they will not, contact your attorney for help crafting a PWN that you can send to these families.
If school districts are not providing general education or special education, would we owe compensatory education? Should that be in the PLEP?
Generally, your obligation to provide compensatory education will not be driven by your decision to provide enrichment or educational services triggering FAPE. In either case, when school reopens, each student’s IEP team will have to ask whether a student has lost skills during the closure and, if so, whether the team will need to provide compensatory education.
If a student is receiving supplemental services that cannot be provided without in-person service (the Fact Sheet lists hands-on physical therapy, occupational therapy, and tactile sign language educational services as examples), the IEP team will also need to assess whether the student needs some compensatory education services when school reopens or when it is safe to meet with students in person.
Compensatory services can be documented in the PLEP or in an annual goal, wherever the team and/or case manager thinks it appropriate in a given case.
Will nursing or health care needs that were available at school be necessary if a school is having live sessions during portions of the day that the child requires related services, such as feeding? Could districts potentially have to pay a parent for these services if they take place during educational time?
Nursing services would only be required at home if:
The school district is providing educational services; AND
The student cannot access FAPE without that nursing at home.
Remember that medical services as “related services” generally are only required to allow a student to access his or her FAPE. Schools are not required to provide medical services unless they are related services under the IDEA. To that end, the Fact Sheet makes clear that if it is not safe for staff to serve the student, the district should not endanger student or staff health. Instead we suggest providing PWN and having the student’s IEP team consider possible compensatory education services when school resumes.