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.

Each of these proposals involves funding, which means that each relies on Congress working together with the administration and agreeing to the expenditures. Given that the top priority is likely funding to support COVID-related initiatives, we will have to wait to see if any of these ideas moves forward.

Also on the legislative front, Biden supports the Keeping All Students Safe Act, which would end the use of seclusion and decrease the use of physical restraint in schools.

Outside of funding and legislation, Biden has made several statements about how his administration will approach disability-related issues, promising an inclusive White House. His website states that he “will appoint a director of disability policy within the Domestic Policy Council to ensure that these issues receive the attention they deserve at the highest levels of government and are integrated in broader policy discussions,” signaling a significant shift from the lack of familiarity with disability law and issues initially evidenced by the Trump administration.

While the new Secretary has not yet been determined, Biden has made statements about his directions for the Department of Education, including:

  • Fully implement the special education significant disproportionality regulation, which the Trump administration attempted to delay.
  • Have the Department provide additional guidance related to transition planning for students with disabilities.
  • Step up the investigation and enforcement activity of the Office for Civil Rights.
  • With respect to inclusion, “direct the Department of Education to support teacher preparation programs to ensure that all teacher candidates have the ability to support students with disabilities in their classrooms.”

Additionally, the change in administration brings the possibility of a new position on IDEA waivers or flexibility during the COVID-19 pandemic. While we have yet to hear Biden’s plans on this point, given the influence of teachers’ unions with the Biden team, IDEA flexibility may get additional consideration. We will keep you informed as the agenda and appointees of the President-elect become clearer.

OCR recently published a Q&A document providing expectations for compliance with civil rights laws during the pandemic. While OCR is not responsible for enforcing the IDEA, it is responsible for Section 504. Because students with IEPs are generally also protected by Section 504, the new guidance is applicable to students both with Section 504 plans and with IEPs. At the same time, OSEP published a Q&A document providing guidance specifically related to the IDEA. Much of the guidance will sound familiar, but you may find a few surprises.

OCR Q&A

  • Return to in-person instruction.

OCR advises there may be circumstances where a District would be allowed, or even required, to give priority to a student with a disability when phasing in the use of physical facilities for in-person learning.

Note that OCR is not requiring in-person instruction for students with 504 plans and IEPs or advising districts to ignore current health and safety risks and necessary precautions. Instead, OCR provides that individualized determinations need to be made with respect to whether providing in-person instruction would be a reasonable modification to a reopening policy that is necessary to provide FAPE or avoid discrimination on the basis of disability.

  • Remote instruction for isolated and quarantining students. Special education and related services should be provided to students who are required or advised to stay home for an extended period of time by public health authorities or school officials because of COVID-19. If a student is not personally ill and unable to participate, rather than counting such absences as sick days, remote services should be provided so the student can continue to access their instruction.
  • Masks. If requiring a child with a disability to wear a face covering would impede the child’s ability to receive a free appropriate public education (FAPE), reasonable modifications should be made if they can be made consistent with the health, safety, and well-being of all students and staff, and are necessary to avoid discrimination on the basis of disability. As you know, ISBE has also advised that a student who is unable to wear a face covering or shield may not be denied access to in-person instruction if provided to other students at the school. We read both directives to point to making individualized determinations through the 504 or IEP team to determine what accommodations and modifications can be put in place to maintain safety and appropriate education.
  • Reducing services. OCR advises that state-wide or district-wide policies that reduce or limit services specifically for students with disabilities, without regard to reasonable modifications or services that may be necessary to meet the individualized needs of the students, violate Section 504. Not a big surprise here, districts should avoid directives to cut all services by a given percentage; like always, teams should make individualized determinations for each student.
  • Implementing IEPs and 504 Plans.

Schools that provide distance learning still must comply with Section 504 and Title II, including providing services required by an IEP or Section 504 plan.

Helpfully, OCR explains that an implementation failure could deny a student FAPE but is not a per se denial.

OCR “will continue to take into consideration all relevant circumstances when evaluating a school district’s implementation of an IEP or Section 504, including the impact that any discrepancies from an IEP or Section 504 plan have on the student’s ability to participate in or benefit from the school district’s services, programs, and activities.” Check out this recent post regarding hearing officer and state determinations related to complaints alleging an IEP implementation failure.

  • Evaluations and reevaluations. Under Section 504, evaluations must take place within a reasonable timeline under the current circumstances. OCR typically looks to the timelines set by IDEA and State law, but parents and school personnel can agree to extend governing timelines. Remember that IDEA timelines continue to apply for IDEA evaluations, though parents and districts can mutually agree on an extension of time. OCR also advises that if social distancing measures and other restrictions due to COVID-19 make in-person evaluations impracticable, schools should make “good-faith efforts” to conduct assessments virtually or via other comparable methods. OCR also notes that parents and school personnel can mutually agree to use a diagnostic placement for a student with a suspected disability while postponing the evaluation until it can be conducted safely. While diagnostic placements are not specifically provided for in Section 504 or the IDEA, they can be a useful tool in difficult circumstances.
  • Remote learning is not a placement.

“Placement decisions and educational settings … do not need to be changed or updated solely to reflect a temporary shift to distance learning.”

But districts must continue to provide FAPE to students with disabilities and failing to implement an IEP or 504 plan may be a denial of FAPE. Accordingly, individualized determinations must be made to with respect to whether to revise an IEP or 504 plan, including identifying how the services and accommodations may be provided through a variety of instructional methods and settings. This statement may be helpful in pushing back against arguments that remote learning is a change of placement or that stay-put can be invoked to maintain in-person instruction.

  • No Waivers. A school district may not require parents to sign waivers of their Section 504 (or IDEA) rights before delivering online services to a student with a disability.

OSEP Q&A

  • Continued obligation to provide FAPE, regardless of the delivery model.

OSEP acknowledges that decisions about how and when educational services are provided are made by State and local officials based on both educational and safety considerations. OSEP goes on to emphasize that

“no matter what primary instructional delivery approach is chosen, SEAs, LEAs, and IEP Teams remain responsible for ensuring that a free appropriate public education (FAPE) is provided to all children with disabilities.”

  • Remote Learning Plans. OSEP states that “IEP teams should identify how the special education and related services included in a child’s IEP will be provided and should consider a variety of instructional methods and settings.” The guidance continues that IEP teams can discuss how a child’s IEP will be implemented in circumstances require remote or hybrid models of learning. OSEP does not go so far as to require remote learning plans, as the document is intended to provide clarity around existing law and does not create new binding requirements. But the implication is clear that teams, including parents, should be thinking through these issues and documenting their contingency plans.
  • IEP Amendments. OSEP reminds teams that amendments can be used to make changes to IEPs without an IEP meeting if the district and parent agree. Two points to keep in mind: amendments cannot take the place of an annual IEP meeting and the district must provide the parent prior written notice of changes made through an amendment.
  • Extended School Year. OSEP advises that if a district was unable to provide ESY services over the summer, IEP teams should consider providing additional services to students during the school year or during school breaks. Most districts provided ESY services remotely this year, but this recommendation seems in line with prior guidance that teams should review if missed services or remote services have met a student’s needs and, if not, what additional services can be provided to support the student moving forward.
  • Initial Evaluations. OSEP notes that none of the exceptions to the timeline for initial evaluations is applicable based on school closures or health restrictions preventing face-to-face meetings, but that state regulations may provide additional exceptions. Illinois law does not include any applicable exceptions either, though ISBE has advised that districts and parents can mutually agree to an extension of the timeline.
  • Reevaluations. The guidance acknowledges that “during the pandemic, social distancing measures and each child’s individual disability-related needs may make administering some in-person evaluations impracticable and may place limitations on how evaluations and reevaluations are conducted under IDEA.” The Department encourages districts to investigate appropriate assessment instruments and tools and determine if some can be administered remotely. At the same time, the Department reminds districts that tests and other evaluation materials must be used for the purposes for which the assessments or measures are valid and reliable and administrated by trained and knowledgeable personnel in accordance with any instructions provided by the assessment producer. A reevaluation based solely on a review of existing data is permissible if sufficiently comprehensive to determine whether the child continues to have a disability and the educational needs of the child.

As always, reach out to our Special Education Team with questions.

Now that many of us have been doing some form of remote learning for close to 7 months, we are starting to see hearing officers and state agencies weigh in to resolve complaints related to the appropriateness of remote special education services. While we have not yet seen any Illinois decisions, a review of decisions from other states may shed some light on trends and approaches. Read on for a sample of recent cases and takeaways that may be relevant to your school.

Participation in Remote Learning

In a due process case in Washington, DC, the student had previously been residentially placed but transitioned to a therapeutic day school in January 2020. The student was making some progress until schools were closed due to the pandemic but did not participate in the school’s remote learning program. While the student’s guardian advocated for the student to return to the residential placement, the student, district, and therapeutic school recommended continuing at the day school. Given that a month had passed between the hearing and the decision, the hearing officer directed the IEP team to meet and determine if the student had been participating in the remote program. If so, that would demonstrate that the day school was his least restrictive environment. But if the student had not been participating, a residential placement should be made.

Schools should take and document steps to support student engagement in remote learning. An IEP meeting to develop new approaches may be warranted to avoid a potential need for compensatory services and/or a more restrictive placement.

Continue Reading What Are Hearing Officers Saying about Remote Learning?

While only a handful of cases have been reported related to districts’ provision of special education services remotely, we are watching carefully for lessons learned. So far, courts have not required in-person instruction as stay-put, but have indicated the importance of providing remote services tailored to student needs. These early cases reinforce our guidance to make individualized decisions to meet student needs in these extraordinary circumstances. Further, documenting these determinations in an individualized remote learning plan that is incorporated into the student’s IEP can help guard against both procedural and substantive challenges.

Continue Reading Will Hearing Officers and Courts Order In-Person Instruction as Stay-Put?

Schools planning for students to return to campus in person this fall are confronting many significant challenges, including how to support students who may need physical restraint while also maintaining safe practices to minimize the risk of Coronavirus transmission. Schools and IEP teams should start planning to address this issue, such as considering whether additional PPE is needed, whether alternative behavior strategies and interventions could be effective, and whether other changes to the student’s  IEP, including placement, may be warranted to safely provide the student an appropriate education.

Additionally, staff need training to understand and comply with the new physical restraint and time out rules issued this spring. While some of the required training can be done remotely, training related to physical restraint must be done in person. ISBE advised in its recently updated Guidance and FAQ document that the required eight hours of annual training for the 2020-2021 school year must be completed by December 31, 2020.

Continue Reading Key Elements of ISBE’s Permanent Rules on Isolated Time Out, Time Out, and Physical Restraint

ISBE and IDPH recently released their guidance related to Starting the 2020-21 School Year. The guidance addresses a broad range of topics, including some suggestions related to special education. The following week ISBE issued an FAQ targeting special education issues.  While many details remain to be worked out at the local level, here are our key takeaways related to placing a high priority on returning students with disabilities to in-person instruction, addressing the needs of medically fragile students, continued remote learning versus homebound instruction, face coverings, and the many demands and challenges facing IEP teams.

First, ISBE states that “high priority should be placed on providing in-person instruction for students with IEPs [and] 504 plans.” Additionally, “these students should be in attendance in-person daily during Blended Remote Learning Days.” Developing a plan to manage the learning and safety needs of an entire school and entire district, cooperative, or network is a major undertaking that includes balancing many competing demands. Given the additional needs of students with IEPs and 504 plans, as well as their additional legal protections (and the corresponding risks to not providing adequate services), prioritizing these students for in-person instruction is prudent.

Continue Reading Planning for Return to In-Person Instruction: Special Education Considerations

On June 30, 2020, ISBE issued an FAQ document with the purpose of assisting school districts in the transition to in-person instruction. This document, which supplements ISBE’s general guidance on return to in-person instruction during Phase 4, does not include waivers or offer flexibility on existing rules. Rather, it summarizes past and current recommendations in a potpourri of categories including (1) ESY, (2) compensatory services, (3) evaluations, (4) class sizes, (5) homebound services, (6) health and safety factors, (7) IEP meetings/mediations/hearings, (8) delivery of special education instruction and related service, and (9) rules related to private special education schools. An abbreviated version of the guidance, or “cheat sheet” follows. Also check out this post providing additional considerations and analysis related to planning for a return to in-person instruction.

Continue Reading Cheat Sheet for ISBE’s FAQ for Special Education on the Transition to In-Person Instruction

We recently let you know about a pending bill that would make changes to several special education procedures. Senate Bill 1569 has now been signed by Governor Pritzker as PA 101-0643. The law makes numerous changes related to remote learning. For purposes of special education, consider the following action steps to meet the new requirements:

Continue Reading Prepare for Special Education Procedural Changes Enacted in New Remote Learning Law

Less than a year ago, Public Act 101-0515 sent Illinois special educators scrambling to comply with an array of new procedural requirements. IAASE and other groups have been working to bring additional clarity to the law and make it more workable for schools while maintaining the original focus on parent participation. Senate Bill 1569 just passed in the legislature and, if signed, would make changes in each of the areas impacted by the original Act. Although you’re busy dealing with the challenges related to remote learning and preparing for the unknowns of next school year, take a few minutes to review the changes below and get ready to make a couple additional modifications to your processes.

Continue Reading New Bill Would Bring More Changes to Special Education Procedures

Since the beginning of the COVID-19 pandemic, no formal flexibility has been granted to schools to deviate from State and federal special education requirements. However, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) gave the U.S. Secretary of Education Betsy DeVos the power to appeal to Congress if she believes that waivers should be made to provide flexibility regarding the Individuals with Disabilities Education Act (IDEA). Earlier this week, Secretary DeVos made her recommendations to Congress, declining to seek significant flexibility for IDEA provisions. Secretary DeVos only requested limited waivers related to pre-k evaluations.

Continue Reading Secretary DeVos Rejects Extensive Waivers to Special Education Requirements, Leaving Core of IDEA Intact