As the 2019-20 school year lurches toward its end, special educators are turning their attention to the next steps for their students: end of year progress reports and extended school year services. As with almost every other aspect of educators’ lives during the COVID-19 pandemic, these things will look different this year.
Progress Reports
School districts are required to provide written information to parents about their students’ progress toward IEP goals and objectives. The federal regulations merely say that these reports must be “periodic.” Section 007.07A4 of Rule 51 does not provide any additional requirements beyond the federal regulation. While this gives school districts a lot of flexibility, special educators are uncertain how to report progress during the closure of school buildings to in-person student instruction statewide. So, what follows is a step-by-step guide on how to prepare special education progress reports during a global pandemic (and, actually, at any other time as well!).
Step 1: Check the IEP
The IDEA does not technically require that schools issue progress reports -- it requires that each IEP identify when progress reports will be sent. In Nebraska’s Student Records System program, your obligation to report student progress is nestled underneath each annual goal in a student’s IEP. Every case manager should start by checking every single student’s IEP to see what the team has promised the family.
Step 2: Determine if You Have the Data To Report Progress
IEP teams are not required to identify the specific metrics that the school will use to report a student’s progress. But if the IEP says that you will report on a specific assessment, you have to use it. For example, many IEPs for students with specific learning disabilities in reading or math state that they will use MAP testing to assess a student’s growth in those content areas. Since schools will be unable to administer MAP testing, you will need to note in the progress report that the district is unable to report progress using that metric. Although school attorneys are not big fans of identifying educational methodology in IEPs (for reasons like those we face here), if the IEP team promised to measure progress using a specific methodology or metric, we are obligated to report on the progress using that metric, not substituting our own.
A quick case reference here will be helpful. In Seattle Sch. Dist., 113 LRP 19336 (SEA WA 4/03/13), the student’s IEP stated that he would be able to spell 3 of 5 third-grade level words correctly. When the goal was written, the student was entering third grade but was only spelling at a first grade level. The resource teacher moved the student through the second grade spelling curriculum and reported on progress reports that the student “was spelling second grade words with 60% accuracy.” The parents placed the student in a private school and sued for tuition reimbursement arguing, among other things, that this progress report was meaningless because it did not use the benchmark set by the IEP. The hearing officer agreed. “The progress report contains no measurement of the goal, which was to spell three out of five words correctly at the third-grade level on the Brigance. There is no evidence whether the Student was by now able to spell zero, one, or two words out of five correctly at the third-grade level. … Perhaps the Brigance does provide information on how well a student does on a level above his own. The progress report's comment on weekly spelling tests does not tell us this, either.”
The lesson from Seattle and cases like it is that you MUST use the benchmarks set by the IEP document. If you cannot measure a student’s progress using the tools identified in the IEP because of the COVID-19 closures, you should candidly report that. You can then then include any other information that would shed light on a student’s progress in the comments section of the progress report.
Step 3: Remember Transition Goals for Students 16 Years of Age or Older
Neither the IDEA nor Rule 51 require LEAs to report progress that students are making on transition goals. However, the federal Office of Special Education Programs has issued guidance that requires schools to report specifically in transition goals. In Letter to Pugh, 117 LRP 3733 (OSEP 1/18/17), OSEP reasoned that a student’s transition goals will necessarily include academic and functional goals, and that a student’s progress in those goals must be reported. This could prove particularly challenging with life skills goals that may require practice and modeling -- tasks like doing laundry and grocery shopping. If you provided the student’s family with guidance on how to assist students in learning these skills, be sure to solicit their input on how the student is doing in meeting those goals. However, these students may need to be marked as making incomplete progress until we can work with them in person after schools reopen.
Step 4: Use the Data You Do have to Articulate Progress
The IDEA does not require you to ensure that a student will make adequate progress toward his/her annual goals. Instead it requires school districts to design IEPs with appropriately ambitious goals and to implement those IEPs with fidelity. The U.S. Supreme Court stated in Endrew F. that students with disabilities are entitled to educational goals which are “appropriately ambitious in light of the child’s circumstances.” Every school child’s circumstances currently include living through a global pandemic, and that will necessarily have an effect on students’ educational achievement, regardless of whether or not they have a disability.
Special educators should accurately report a student’s progress toward the goals which were developed prior to the school closures, and be candid if a student has not progressed as we would have hoped during the closures.
An Example
An example might be useful at this point. Let’s say that a student’s IEP has the following life skill goal:
In 36 academic school weeks, Student will learn how to go to a restaurant, place an order and calculate how much money to give the cashier after being told what she owes.
The goal’s short term objectives include:
Student will be able to read a menu up to a given dollar amount with 80% accuracy 4 out of 5 attempts
Student will be able to make eye contact and engage in appropriate social interaction with restaurant staff with 80% success in 4 out of 5 attempts.
Student will provide cash payment to restaurant staff in appropriate increments above the total (e.g. payment with a $20 bill for a charge of $16.75) with 80% success in 4 out of 5 attempts.
Obviously, this student will not be able to practice all of these skills during a COVID-19 closure. If the student has been able to practice reading a menu, the district can report on that. However, the student simply cannot practice the second and third benchmarks during closure. The progress report should report “progress made, goal not met.” For the prompt, “Progress sufficient to meet goal by end of IEP year,” the answer is probably “no.”
Then in the comments the school can write something like,
“Due to the statewide directed health measure necessitated by the global COVID-19 pandemic, school district staff were prohibited from in-person instruction of all students, including Student. Therefore she was unable to practice the second two benchmarks under this goal. Instead, district staff assisted Student in learning how to access online menus and how to calculate what she would have to pay if she did order a meal online. Student was successful in reading an on-line menu and selecting her preferred meal in 5 out of 5 attempts. Student was able to successfully estimate whether her total for a meal order was more or less than an identified amount in 3 out of 5 attempts. Student will have the opportunity to practice and master the remaining skills under this goal after the school district reopens for in-person student instruction.”
We have had several KSB clients ask us to draft stock wording that they can place into progress reports to document the COVID-19 closures. That wording will be different depending on whether the school offered FAPE-implicating education, enrichment or closed completely. As with many of the forms we have drafted during the COVID-19 closures, we believe that these forms are “legal advice” that schools should secure from their legal counsel. If you are a KSB client who would like to see these samples, please e-mail Shari at shari@ksbschoollaw.com and she will send them to you (we are charging a flat $150 for these forms). We cannot emphasize enough, however, that progress reports will have to be individualized based on the student, the IEP and the way the continuity of learning plan that districts put in place after the COVID-19 closures.
Extended School Year Services (ESY)
Under IDEA, the IEP team determines whether a student needs special education and related services beyond the normal school year to receive a free appropriate public education (FAPE). The Nebraska Department of Education has an excellent technical assistance document from 2018 which identifies when a student is eligible for ESY:
The purpose of an extended school year is to prevent or slow severe skill regression caused by an interruption of special education services during extended periods when school is not in session. . . . An extended school year may be provided only when it is determined that a child might regress in a critical skill area to such an extent that recoupment of the skill loss would require an unusually long period of time to recoup or make it unlikely or impossible to recoup the present level of educational performance. . . . Some children with severe disabilities may consistently demonstrate a limited array of skills, but not demonstrate a significant regression/recoupment factor in any of the skills. Therefore, these children would not be appropriate candidates for ESY services.”
How do these rules and factors apply in this new environment? Local school districts probably have three sets of students:
Students Already Eligible for ESY
If an IEP team has already decided that a student needs extended school year services, it is hard to see how the COVID-19 closures would change that determination. District staff should reach out to these families and ascertain (a) if they are still willing to have their student participate in ESY and (b) if they will agree to those ESY services being provided electronically rather than in person. If the family will not agree to amend the location of the ESY that is identified in the student’s IEP, you will need to hold an IEP team meeting to set the location of the ESY.
Students Already Deemed Ineligible for ESY
If an IEP team has already concluded that a student does not struggle with unique dangers of regression during school breaks that cannot be recouped within a reasonable period of time after school resumes, the student is not currently eligible for ESY. If a parent requests ESY now, the team should consider that request on an individual basis. Keep in mind that that NDE’s technical assistance document states that ESY “is not to enhance the present levels of educational performance exhibited by children with disabilities at the end of the regular school year.” In other words, ESY is not the appropriate vehicle to provide a little extra assistance to any special education student who might benefit from it. The student must show a unique need based on the dual regression and recoupment standard.
Students for Whom ESY Has Yet to Be Determined
Many IEP teams defer the decision on ESY until the spring. This practice is lawful, because the team is permitted to gather data on a student’s progress in meeting his/her annual goals before deciding if the student is in danger of losing critical skills due to regression that cannot be recouped when school reopens. For these students, school staff should first reach out to families to see they would participate in ESY services if the school district offered them. If the parents indicate their refusal, the LEA can document that referral and avoid holding a full IEP meeting. If the parents are still open to their child participating in ESY, the school should convene the student’s IEP team. The team should consider the factors outlined above, including reviewing regression and recoupment data from prior “scheduled breaks in instruction” such as last summer or the winter break. The team must ultimately decide whether they predict that the student will regress so significantly over the summer that catching up on those skills would harm the student’s continued learning next year.
As you make ESY decisions, remember that ESY is not required based on a lack of expected progress on IEP goals (particularly considering the school closure and remote learning disruption impacting all students). Also remember that ESY is distinct from compensatory education. The school closure does not directly impact the analysis of ESY eligibility, and students should not qualify for ESY solely because of the school closure.
Conclusion
As with everything else affected by the COVID-19 closures, there is not a single “right” answer to the questions of how to report progress or provide ESY to special education students in the spring of 2020. If you have questions about a specific student or want to have a particularly difficult report reviewed, you should consult with your school district’s attorney. Although we are also learning about the virus issues as we go, school attorneys can provide districts with significant protections when drafting these documents. If you have questions about these or any other legal issues, please don’t hesitate to contact Karen, Steve, Bobby, Coady or Jordan at ksb@ksbschoollaw.com.