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.

In her report, the one area where Secretary DeVos requests waiver authority is to extend transition evaluation timelines to accommodate for delays while in-person evaluations are not feasible. The result would be a delay in the obligation to evaluate students under three years of age until in-person meetings and assessment are allowed. This waiver authority would also allow toddlers to continue receiving early childhood services, even after their third birthdays, until an evaluation can be completed and an eligibility determination made.

Notably, Secretary DeVos did not recommend any other waivers for IDEA or Section 504 of the Rehabilitation Act. The report states that she is not moving forward with any waivers that would alter or impede the core tenants of the IDEA, such as providing a FAPE in the least restrictive environment. In a statement, DeVos explained that “there is no reason for Congress to waive any provision designed to keep students learning.” Adding that “with ingenuity, innovation, and grit, I know this nation’s educators and schools can continue to faithfully educate every one of its students.” However, the lack of flexibility and minimal direction provided regarding both State and federal requirements for special education has many schools and school districts understandably concerned about potential liability for attempts to evaluate students and implement IEPs during mandated remote learning.

Secretary DeVos’s waiver requests must be approved by Congress. For now, schools have not been granted any flexibility to deviate from federal requirements regarding special education and it is increasingly unlikely that additional waiver requests relaxing IDEA requirements will be forthcoming. Given that IDEA is a federal law, at the State-level, we have also seen very limited flexibility, as discussed in a previous post.

We will continue to bring you updates regarding the status of Secretary DeVos’ waiver request as it relates to early childhood transition evaluation timelines. And as always, your Franczek attorneys are here to answer any questions you have regarding special education concerns during the suspension of in-person instruction.

Just as remote learning has become the new normal, we turn to planning for ESY and the 2020-21 school year. While the timeline for returning to school buildings remains uncertain, the eligibility of some students with disabilities for support over the summer remains clear. How should schools think about ESY eligibility this school year? We recommend starting with the same standards that have long governed ESY eligibility.

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). ISBE guidance from 2001 reviews the case law related to ESY eligibility and identifies the following key factors for IEP teams to consider:

  1. regression/recoupment;
  2. the nature of the disability and degree of impairment; and
  3. emerging skills, and areas of learning crucial for independence.

Continue Reading “Extended School Year” When the Regular School Year Wasn’t Finished

And so it begins. While we have encouraged schools to focus on meeting student needs during the school closure and planning to meet student needs when we return to school buildings, we knew the temptation to jump ahead to compensatory education questions would be strong. Guidance documents from the U.S. Department of Education and ISBE have contributed to such concerns by stating that IEP teams will need to make individual compensatory education determinations for students when school resumes. Now, a putative class action lawsuit has been filed in Hawaii. The suit alleges that Hawaii denied students FAPE by failing to implement their IEPs during the school closure and seeks to establish a set of parameters and procedures to identify and address lost educational opportunities for students. While class action lawsuits and the specter of numerous due process complaints raise our collective blood pressure, we continue to advise that schools focus on doing their best to provide reasonable services to meet individual student needs, communicate with parents, and document, document, document. These actions will prepare schools to address requests for compensatory services if and when they come.

Continue Reading Hawaii Comp Ed Class Action: Don’t Panic. Plan.

In a previous post, we forecasted further guidance from ISBE and the U.S. Department of Education to provide additional clarity for schools in regard to how to best serve students with disabilities during school closures as a result of the COVID-19 pandemic. Earlier this week, ISBE posted an updated FAQ regarding providing special education during remote learning as Illinois schools remain closed for the remainder of the 2019-2020 school year. The 17-page document reviews current requirements, repeating that federal and State law requirements related to students with disabilities are still in effect despite the suspension of in-person instruction. The FAQ tracks closely with federal guidance. And while ISBE provides some guidance regarding how Districts should offer remote services, many issues are left to schools and their counsel to navigate.

At  this time, neither the U.S. Department of Education nor ISBE has provided substantial flexibility to deviate from State and federal requirements regarding special education. Furthermore, in its guidance, ISBE reiterated that the IDEA, Section 504, and Title II of the ADA should not prevent any school from offering educational programs through remote learning. Below, we have identified the key areas where current State and federal laws are still in effect:

  • FAPE: ISBE considers remote learning days as attendance days, meaning that schools and school districts are required to continue providing eligible students with FAPE during remote learning days through appropriate special education and related services provided through distance instruction. While schools may not be able to provide all services in the same manner, the U.S. Department of Education has stated that it intends to “offer flexibility where possible,” but has not officially relaxed any requirements related to the provision of FAPE.
  • IEP and Evaluation Timelines: At this time, no flexibility has been granted with respect to complying with IEP and evaluation timelines as proscribed by State and federal law. Furthermore, all federal requirements regarding referrals and evaluations are still in effect. However, schools and school districts do have the option to work with families to reach agreements on extensions of relevant timelines.
  • Consent and Participation: Schools are still required to obtain informed consent and should consider utilizing e-mail, electronic signatures, or other means for obtaining required written consent. The requirement to involve parents in IEP meetings, including providing interpreter services, remains in effect, though meetings need to occur virtually. Schools and districts should clearly document all attempts to contact parents and provide services during remote learning.
  • Child Find: Federal requirements concerning referrals and evaluations to comply with child find obligations are still in effect. Schools should consider their options in terms of assessment procedures, rather than direct student contact, to appropriately evaluate students.
  • Related Services: While in-person therapies such as physical or occupational therapy, or tactile sign language education services are likely unfeasible at this time, no flexibility has been granted regarding the requirement to address a student’s individualized area of need, even regarding hands-on therapies.
  • Behavior Intervention Plans: ISBE’s guidance states that educators should implement BIPs during remote learning by adapting the method of learning on an individualized and as-needed basis.
  • Early Intervention and Early Childhood Transition: Federal and state requirements regarding transition from an early intervention plan remain in effect during remote learning. Accordingly, a student in an early intervention program must have either an IEP or IFSP in effect by his or her third birthday.
  • Private Special Education Schools: Resident districts are still responsible for students currently placed in private special education schools, including placement and travel for these students should a residential placement close during the COVID-19 pandemic. School districts should work with private special education schools to determine appropriate remote learning methods.
  • Due Process: During remote learning, no flexibility has been granted regarding federal and State timelines concerning due process and mediation, though parties can request or agree to extensions. The timeline for State complaint resolution may be extended by agreement or if exceptional circumstances related to COVID-19 exist with respect to a particular complaint, such as staff unavailability or extended absence.

While the FAQ provides minimal direction with respect to how to adapt these requirements to the current circumstances, districts, cooperatives, and professional associations have been working diligently and creatively to problem-solve and share ideas.

In its FAQ, ISBE also provided guidance regarding several areas where schools and school districts should work to offer services remotely, such as utilizing telephone or video conference capabilities to conduct IEP meetings. Additionally, ISBE stressed that students are still required to make measurable progress on their IEP goals, meaning schools should consider providing services and related services through teletherapy and tele-intervention practices. This also includes addressing accommodations and social and emotional learning goals during remote learning, as well as utilizing alternative activities to address transition goals in place of in-person opportunities.

As always, your Franczek attorneys are available to answer any questions and consult with you, particularly regarding the following areas ISBE suggests consultation with a board attorney:

  • Reviewing special education timelines related to business days and calendar days to comply with State and federal law;
  • Amending IEPs to address remote learning or the provision of teletherapy or tele-intervention;
  • Responding to parents who request in-person meetings;
  • Concerns regarding inability to implement systems of support or interventions;
  • Completing evaluations that were not completed prior to the suspension of in-person instruction;
  • Developing initial IEPs;
  • Providing services as stated in a student’s IEP;
  • Providing in-person, hands-on therapies to comply with the requirement to provide FAPE;
  • Proving nursing care to students;
  • Meeting students’ social and emotional needs;
  • Convening and conducting necessary Manifestation Determination Reviews; and
  • Determining whether compensatory services may be needed when school resumes operation.

We will continue to review any additional State and federal guidance that is issued as this unprecedented situation continues to unfold. In the meantime, your Franczek attorneys are here to answer any questions you have relating to the above or general special education concerns during remote learning.

Last fall, in response to serious concerns raised about the use of isolated time out and physical restraint in schools, ISBE issued emergency rules to limit the use of those behavior management techniques. Emergency rules are effective for up to 150 days or until permanent rules are approved, and these emergency rules were due to expire on April 17, 2020.  On April 9, ISBE and JCAR (the bipartisan legislative oversight committee responsible for reviewing and approving agency rulemaking) passed permanent rules regarding isolated time out, time out, and physical restraint. The new rules allow the use of isolated time out as well as prone and supine restraint in limited circumstances, but the provisions related to prone and supine restraint terminate on July 1, 2020.   

Continue Reading ISBE Adopts Permanent Rules on Isolated Time Out, Time Out, and Physical Restraint

After three weeks of being out of school buildings and one week of remote learning, we can all see that the IDEA was not written for pandemics and widespread school closures. While requests for IDEA flexibility have been made, the Department of Education has not indicated whether or when such requests might be granted. Federal and State guidance has been provided but continues to evolve. Educators, administrators, parents, attorneys, states, and the Department of Education are all improvising. In these uncertain times, we recommend schools go back to basics: individualize, communicate, document, and be reasonable. Remember that the FAPE standard is based on what is reasonable under the circumstances.

Continue Reading Special Education and Remote Learning: Back to Basics

The U.S. Department of Education (ED) recently issued a “Supplemental Fact Sheet” updating its earlier Questions & Answers and Fact Sheet on coronavirus disease 2019 (COVID-19) and clarifying that schools should not refrain from providing distance learning out of fear that they cannot adequately serve students with disabilities. In the updated guidance, ED advises school districts that the delivery of a free appropriate public education (FAPE) remains required but may look different when schools are physically closed. The guidance also addresses the impact of school closures on special education timelines, including urging schools “to work with parents to reach mutually agreeable extensions of time.” School districts should keep the fact sheet in mind when crafting general distance learning options and specific services and supports for individual students.

Continue Reading Department of Education Stresses Special Education Should Not Discourage Distance Learning Efforts

On March 18, 2020, ISBE issued guidance on providing special education during the current mandatory two-week school closure. While the guidance responds to some of the questions arising from this unprecedented situation, neither the U.S. Department of Education nor Congress has provided flexibility with respect to IDEA rules, and the State is correspondingly constrained. As we described in our last post, the big picture message is to do your best to provide services to students with disabilities and meet applicable deadlines. Be creative, document your efforts, and expect compensatory education claims once we get back to school. Below are the key takeaways from ISBE’s guidance.

Continue Reading Highlights from ISBE Special Education Guidance During the Mandated School Closure

In the wake of Governor Pritzker’s recent order requiring all Illinois schools to close between March 17 and March 30, many schools and school districts have been left guessing how to best serve students with disabilities and comply with IDEA timelines during the closure. While forthcoming guidance from ISBE and the U.S. Department of Education may provide additional flexibility and clarity, for now we can share the following update to ease your mind a bit. In summary, schools can safely consider that all special education deadlines calculated using “school days,” including evaluations, are postponed. Guidance is limited with respect to other timelines and so we recommend that you contact legal counsel to address how your school district will proceed with those calculations.

Continue Reading In the Nick of Time—Special Education Timelines During School Closures for COVID-19

Angry pretty young woman in spectacles covering her ears with fingers and showing teeth

School personnel should expect to encounter a heated parent from time to time; parents are often understandably passionate about their children’s educations. But what happens when parental advocacy escalates from vigorous advocacy, strenuous objections, and detailed questions to baseless accusations, repeated demands, and threatening or vulgar language or actions? What can a school do when a parent’s hostile behavior continues over time, putting a strain on staff members’ time and impeding productive communication? A recent case out of the Ninth Circuit examined just such a situation and affirmed the rights of schools to put in place reasonable limits on communication.

Continue Reading Can Schools Limit Parents’ Hostile Speech: Federal Court Says Yes