The Department of Education recently issued Volume 2 of its COVID-19 Handbook. The handbook offers suggestions for creating safe and healthy learning environments, addressing lost instructional time, and supporting educator and staff stability and well-being. Throughout the guidance, the Department encourages readers to keep students who may have been especially impacted by the pandemic and remote learning – including students with disabilities – at the center of plans for returning to in-person learning and using American Rescue Plan funds. The reminder to focus on issues of equity and the needs of vulnerable students, including students from low-income backgrounds, students of color, Native American students, Asian American students, LGBTQ students, English learners, students with disabilities, migratory students, rural students, students in foster care, students in correctional facilities, and students experiencing homelessness is important. The details specific to special education, however, are fairly general.
The American Rescue Plan Act signed by President Biden at the end of last week includes almost $130 billion in education funding. The vast majority of that money will be distributed to school districts based on the Title I formula. This amounts to an average of $2,521 per student in Illinois, though districts with more disadvantaged students will receive more while other districts will receive less. Some of the money will also go to states to use for learning recovery grants, summer enrichment programs, and after-school programs. Of particular importance to special education directors and practitioners is that $3 billion dollars are allocated for IDEA funding. That amount includes $2.58 billion for Part B grants, $200 million for special education preschool grants, and $250 million for Part C grants for infants and toddlers. This money is in addition to the $12.9 billion in state grants for special education in the regular federal budget this year.
A recent OCR decision out of Wyoming is a reminder to school districts of their Child Find obligations—including during remote instruction. In Teton County School District, Wyoming, OCR found in favor of the school district who responded to a doctor’s note diagnosing anxiety and depression with immediate supports and initiating an evaluation. The case illustrates the perils of informal communication about disabilities but confirms that not every reference to a disability triggers the obligation to evaluate.
In the Wyoming case, there were several red flags that unfolded for school personnel.
ISBE has proposed amendments to the current rules regarding special education. These amendments generally track recent changes in the School Code, including
- PA 101-0643: Changes related to RTI and MTSS, providing written materials 3 school days prior to IEP meetings, related services logs, and providing notice of missed services. We previously covered this legislation with an overview and tips for implementation. The legislation was effective June 18, 2020.
- PA 101-0164: Revisions to the process for a school district to withdraw from a special education joint agreement. This legislation was effective July 26, 2019.
- PA 100-0465: As part of the Evidence Based Funding for Student Success Act, changes related to personnel reimbursement. These changes were effective August 31, 2017.
The proposed amendments to the rules also include clarification of multiple definitions. While most of the changes are “clean up,” we thought you might be interested in a few curious provisions: the definition of the term “school day” and the use of RTI and MTSS as part of the evaluation process.
ISBE has adopted new rules to support parent participation in IEP meetings by requiring districts to arrange for and fund “qualified interpreters” for parents whose native language is other than English. We have heard concern from many clients that they do not yet have staff who meet the requirements to be a qualified interpreter. This is not surprising given that the rules are brand new and the requirements are extensive. In the meantime (and on ongoing basis if desired), districts can use outside vendors, including telephonic interpreters. The requirements for qualified interpreters are summarized below. For now, districts should focus on meeting the new notice requirements, also spelled out below.
Notice Requirements (23 Ill. Admin. Code 226.530)
In each Notice of Conference and in the district’s annual notice to all parents of children with disabilities, the following must be provided:
- The availability of interpretation services at IEP team meetings;
- An explanation of how parents can request an interpreter;
- Notice that a parent has the right to request that the interpreter serve no other role in the IEP meeting than as an interpreter, and that the district should make reasonable efforts to fulfill this request; and
- A point of contact to address any questions or complaints about interpretation services.
In the final weeks of the Trump administration, the Department of Education’s Office for Civil Rights (OCR) initiated “proactive investigations” against Seattle Public Schools and the Indiana Department of Education related to special education services during the pandemic. You’ll recall that since the early days of COVID-19 and the first school shut-downs, the Department of Education has maintained that, while the methodology may change, the obligation to provide a free and appropriate public education to students with IEPs and 504 plans remains intact. In October, OCR and the Office of Special Education Programs (OSEP) reiterated that position in two FAQ documents. These new investigations, opened as the Trump administration was headed out the door, were based on “disturbing reports” in local news media. The investigations aim to determine if Seattle Public Schools and the Indiana Department of Education have met federal requirements to provide appropriate and individualized instruction to students with disabilities during the pandemic.
Prior to winter break, we wrote about proposed legislation that would further limit the use of physical restraint and time out in Illinois schools. While many expected the bill to pass during the lame duck session earlier this month, it failed to do so. Some opposition continues, but we do expect the bill to be taken up again in the spring.
In the meantime, we’ll be sharing a checklist of the current requirements for policies, procedures, and training in the IAASE blog next week. The final regulations issued last spring remain in effect and do make significant changes to the prior regulations. While multiple revisions to policies and procedures is a pain, keeping your team up to date and in compliance is essential, especially to the extent you have students learning in-person.
Please reach out with any questions.
*Also authored by Mikaila John
The COVID-19 pandemic has presented hardships for all students and school leaders, and it has been particularly challenging for students with disabilities and their IEP teams. Over the last nine months, districts and schools have been trying to figure out the most practical and effective ways to deliver special education and related services in a remote and hybrid learning environment. At the same time, a growing number of parents have brought due process complaints and state complaints to challenge the adequacy of those services. As those cases slowly work their way through the system, we are starting now to see more decisions. The challenges have been largely focused on whether schools are providing the special education and related services identified on the student’s IEP to the greatest extent possible and whether those services meet the student’s needs.
Over the past year, the use of physical restraint and seclusion in schools has come under increased scrutiny. While ISBE issued emergency rules at the end of last November, followed by a series of updates and then final rules in April 2020, state and federal legislators have also been working on proposed laws that would both limit the use of physical restraint and seclusion and require plans to decrease the use of these techniques over time.
The Illinois legislation, Senate Bill 2315, was introduced last November. After input from stakeholders and various revisions, the bill appeared ready to move during veto session. As veto session was canceled, we may see a vote on the bill during the lame duck session in January. On the federal side, the Keeping All Students Safe Act was first introduced in 2009 (at that time called the Preventing Harmful Restraint and Seclusion in Schools Act). The bill has been reintroduced in the years since but never had sufficient support to pass. The bill was recently reintroduced in the House, and President-Elect Biden has voiced his support of the legislation.
Given the increasing possibility that one or both of these bills could become law, now is good time to learn more about their details. Here are the highlights:
While much of the talk about Biden’s education agenda has quickly turned to who he will appoint to replace Betsy DeVos and how he will manage the COVID-19 pandemic, both critical issues for sure, we wanted to highlight Biden’s agenda related to special education. In his campaign, Biden made several important statements about his aims on this topic. Most importantly, he supports full funding of the Individuals with Disabilities Education Act (IDEA). The law provides for federal funding up to 40% of the average per pupil expenditure, but actual expenditures fall far short of that mark. The federal contribution is currently at about 14-15% or $13 billion. Additionally, his proposals include:
- Increased funds to help teachers earn additional certification in high demand areas like special education. Given the shortage of special education teachers here in Illinois, additional support for teachers seeking this credential could help schools fill open positions and ensure student needs are met.
- Double the number of psychologists, counselors, nurses, social workers, and other health professionals in schools so students have access to mental health care and triple Title I funding. While these goals are not directed specifically to special education, this type of additional support for students could ease the burden on special educators and related services providers.
- Funding for early childhood development experts in community health centers and pediatrician offices with a high percentage of Medicaid and Children’s Health Insurance Program patients. Again, while this is not a special education initiative, it could boost child find and assist families in accessing early intervention services.