Educators have worked frantically all summer to prepare for the reopening of schools. A lot of the focus has been on whether to require students to wear masks, the effect of COVID risk dials, and how to safely serve students in extended school year services and extracurricular activities. As we enter the fall with reopening and contingency plans in place, many special education professionals must now decide how their district’s plans will be applied to special education students. We have prepared this list of frequently asked questions that we have been fielding as special educators prepare for students with disabilities to return to school in a few days.
Does every student with a doctor’s note get to stay home or be excused from wearing a mask or have whatever accommodations the doctor recommends?
Not necessarily. Students with disabilities are entitled to be evaluated for eligibility under either Section 504 or the IDEA. Once the relevant educational team has determined that the student qualifies for services under the relevant statute, it is up to the team/committee to determine the services or accommodations the student will receive.
If a parent provides the school district with a doctor’s note, the first thing to do is to determine whether the student has an existing IEP or 504 plan. If so, the school must promptly convene the relevant team to review the doctor’s note and the team should make an independent determination about appropriate accommodations for the student.
If the student does not have a pre-existing IEP or 504 plan, the school should promptly seek consent from the family to begin the evaluation process.
Can we just do a health care plan instead of a 504?
No. The Office for Civil Rights has made it clear that schools may not side-step the obligations of Section 504 or the IDEA by providing the student with a health care plan. Instead, OCR views the existence of a health care plan as evidence that the school knew the student had a physical or mental impairment and that knowledge triggers the district’s child find obligation. In other words, by giving the student a health care plan, the district is conceding that it should have evaluated the student under 504 and/or the IDEA.
We are allowing families to choose in-person or remote learning. Can we say that students with disabilities must come to school in person since these students are more in need of in-person instruction?
No. School districts that are allowing the parents of typically-developing students to select between in-person instruction and remote learning cannot deprive parents of students with disabilities of that same choice.
Once parents have made their decision, then each student’s IEP or 504 team needs to meet to craft a plan for the student in light of the parents’ choice. This means that the team must make an individualized determination about the services, supports and specialized instruction that each student requires in order to receive a free and appropriate public education. In some cases, the team may decide that it must override the parents’ decision to opt for remote learning and require the student to come to school to receive services. In order to make this decision, educators will use the same criteria that you use in all decisions about placement of a student in the least restrictive environment and should thoroughly document the team’s consideration of the parent’s input.
If you haven’t, take a few minutes to review this excellent technical assistance guidance from the Nebraska Department of Education on Least Restrictive Environment. That document provides:
Considering the Meaning of “Regular Educational Environment”
The use of the term “regular educational environment” is longstanding in IDEA’s regulations. In response to a public comment on the scope of the LRE provision, the Department explained that the term “encompasses regular classrooms and other settings in schools such as lunchrooms and playgrounds in which children without disabilities participate” (71 Fed. Reg. 46585). The settings in a school where children without disabilities participate are many and varied; all are considered part of the “regular educational environment.”
When schools have given parents the ability to select between in-person instruction and remote learning, the student’s “regular educational environment” will be the option chosen by the parents. The student’s IEP team can change the “regular education environment” only after they have followed the legally-required process for making a LRE determination.
In a very useful 2020 Individual Education Program technical assistance guide, the South Dakota Department of Education has similar guidelines for teams to use in making least restrictive placement determinations, beginning on page 33. The South Dakota Department of Education has also included guidance on making least restrictive environment determinations as part of its guidance on re-opening schools this fall, beginning on page 15. In general, if the student is participating the remote learning in the same manner as students without disabilities, the time will count as time inside the regular classroom.
Wait, are you saying we have to hold an IEP meeting for every student with an IEP before school starts?
In a perfect world, yes. Last spring, when public schools began closing across the nation, the Office for Civil Rights released a “Fact Sheet” providing guidance to schools on how to serve students with disabilities during this pandemic. That document provided:
If a student does not receive services after an extended period of time, the student’s IEP team or 504 team must make an individualized determination whether or not, and to what extent, compensatory services are needed including how to make up for any skills that may have been lost.
In a supplemental fact sheet, OCR followed up by stating:
Where there has been an inevitable delay in providing services, or even deciding how to provide services, due to school closures, the student’s IEP team must make an individualized determination whether and to what extent compensatory services are needed when schools resume normal operations.
We are urging our clients to call the services students will receive after the COVID closures “COVID Impact Services” instead of “compensatory education services.” However, regardless of the label affixed to them, it is clear that the US Department of Education expects schools to meet as quickly as possible to determine the extent of any additional services the student might need as a result of the COVID closures.
Similarly, on March 25, 2020, the South Dakota Department of Education issued a joint statement with the South Dakota Parent Connection and Disability Rights South Dakota that included this directive:
At the conclusion of this outbreak, IEP teams can assess if services provided allowed the student to make sufficient progress on goals and educational standards, and then determine if any additional or compensatory services should be made available due to any limitations in the provision of a Free Appropriate Public Education.
Can we just send PWN instead?
There is a dangerous misunderstanding floating around some special education circles that school districts can just issue a prior written notice to parents to side-step the necessity of holding many IEP meetings in a short period of time. This is simply not the case. There are only two ways that a student’s IEP can be amended:
Through a meeting of the IEP team at which the school district arranges to receive meaningful parental participation in the team meeting; or
Through a written agreement with the parents PRIOR to the amendment of the IEP that the plan may be amended in specific ways without the necessity of a full meeting.
AFTER one of these two processes has been followed, THEN the parents must receive prior written notice of any changes to the IEP before the changes to the plan are implemented.
Parents in other states are already successful in filing complaints against districts that unilaterally changed students’ IEPs during the COVID closures without meeting with parents. For example, the Kansas Department of Education just determined that a district violated the IDEA only by failing by failing to include the parent in the development of the student's Individualized Continuous Learning Plan when the school closed due to the pandemic. See In re Student with a Disability, 120 LRP 22907 (SEA KS 2020).
What if we just don’t have the time or resources to hold all these IEP meetings?
We recommend that you triage your caseload by prioritizing the students who are most likely to require COVID impact services in order to receive FAPE. You could schedule IEP meetings along these lines, in order of importance: (a) students who were in the process of being verified at the time schools were closed; (b) students who did not participate in the remote enrichment or educational services the school offered during the closures; (c) students who are displaying new or worsening maladaptive behaviors; (d) students about whom parents/guardians have expressed concerns; and (e) students who show regression or lack of progress in academic assessments as the school year progresses.
For those students who you know will have their IEP team meetings delayed, you should do everything you can to document that the student is not displaying a need for immediate COVID impact services. We have created a sample data collection sheet to document the fact that you’ve gathered information from the student’s family, teachers, and any other service providers.
Do we owe COVID Impact Services to every student with an IEP based on the services they missed out on during the shutdown?
No. Again, IEP teams and 504 committees must make an individualized determination about whether a student needs any additional services as a result of the COVID closures and if so, what those services should be.
What kinds of things should IEP teams be considering when they are deciding whether a student needs COVID Impact Services and if so, what those services should look like?
We think every IEP team and 504 committee should be asking questions about a student’s needs in three broad areas:
1. Academic considerations
Did the student make the progress the IEP team anticipated on annual goals? (If so, the student probably has no need for increased services and/or supports.)
Did the student regress academically during closures?
If so, does the student need to recoup those losses or can the student recoup those losses without a higher level of support?
2. Behavioral SEL considerations
Did the student’s behavior interfere with his/her ability to benefit from the education/enrichment provided by the district during closures? (You can elicit this data from parents, staff and others like coaches who may have worked with the student over the summer.)
If so, does the student need explicit instruction and/or positive behavioral interventions in anticipation of future closures?
Does the student exhibit new behaviors in school that interfere with his/her learning?
Does the student exhibit any new evidence of emotional disturbance, a behavior disorder or anxiety?
3. Transition considerations
Was the student unable to participate in transition activities during closures?
Can those activities be replicated or replaced now?
Does the student need additional transition assistance in light of missing experiences?
Does the student need independent living skills instruction that is best provided in-person? (Discuss timing of that instruction and address contingencies based on the possibility that new COVID spikes could necessitate future school closures.)
Should we be writing IEP and 504 plans based on in-person instruction or remote learning?
Each team should begin by crafting a plan based on the location in which the student will be receiving services when school begins. We are also encouraging educational teams to include in each student’s plan, a description of the services that the student will receive in the event the school district is forced to close for in-person instruction due to the pandemic, when possible. Not all IEPs or 504 plans will lend themselves to a closure contingency, but each team should consider whether any particular student’s education plan can be put in place now and if so, what the educational services will be for that student in the event of a closure.
Can you share the wording we can use for the COVID impact statement for all of our IEPs or 504 plans?
Nope. Nope. Nope.
We all know that the hallmark of services to students with disabilities is that they must be individualized. Although it would be way easier to have a stock statement to include in every IEP or 504 plan, repeatedly using the same statement could create evidence that the school district failed to individualize a student’s services.
Throughout the COVID closures, we have tried to strike a balance between charging for our intellectual property and providing necessary resources for schools free of charge. We have decided to offer the forms referenced above without charge. However, if you are not a regular KSB client, you should check with your upline administration and/or your school district’s attorney before using these forms. We will also be holding a free Special Education focused Q&A Webinar this Friday at 10:00. You can join the webinar by clicking here.