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.

  1. ESY
  • How to make ESY Determinations. Hopefully you have already made ESY determinations! The standard for ESY remains unchanged: whether the student requires special education or related services beyond the normal school year to receive FAPE. The team should consider available data related to regression and recoupment.
  • In-person instruction during ESY. This is permitted during Phase 4 and is a local decision for the district to make in collaboration with the local health department. The IDPH safety requirements must be followed related to face coverings, space capacity, social distancing, symptom screenings and temperature checks, and cleaning and disinfecting.
  • Minimum instructional hours. No minimum hours required for ESY—the amount for each student is determined on an individual basis by the student’s IEP team. The former requirement that schools offer 60 hours of ESY to be eligible for reimbursement is no longer in effect.
  1. Compensatory Education

The explanation provided by ISBE is a welcome change from the prior recitation of the statement from the Department of Education about compensatory services. ISBE recognizes that compensatory education is available only if the student was denied FAPE. Additionally, such services should address the educational deficits resulting from the failure to provide FAPE, day or day or hour for hour services are not required. Check out this post for additional analysis of the compensatory education issue.

  1. Evaluations
  • 60-day timeline. Recall that evaluations must be completed within 60 school days of parental consent. School days do not include Act of God days or Remote Learning Planning Days but do include Remote Learning Days. If less than 60 school days remained in the school year, the evaluation should be complete prior to the start of the next school year. Evaluation components should continue to be done virtually to the extent possible; in-person assessments can be done as long as they adhere to all safety guidelines. Teams should complete missing portions of evaluations as early as safely possible. The team should then convene or reconvene to review the results, determine or revisit eligibility, and develop or revise the IEP, as needed.
  • Applicability of timeline waiver for SLD to other disabilities. The IDEA specifically provides that the district and parent can agree to extend the evaluation timeline for students suspected of having an SLD. Generally the form for such an extension may not be used for other disability categories. During the pandemic, districts and parents have been encouraged to reach mutually agreeable extensions of time. Only for evaluation extensions during the pandemic, if the district and parent had a written agreement to extend the time, the district can code the timeline exception in I-STAR as code 09.
  1. Class Sizes
  • Social Distancing Requirements. These must be followed in special education classrooms. Districts are encouraged to provide in-person instruction to students with IEPs while meeting IDHP safety requirements. Remote and blended remote learning days may also be used.
  • Applicability of 70/30 rule. Provisions for class size and 70/30 remain in effect, even if class sizes in general education classrooms are reduced. If circumstances prohibit adherence to the requirements, districts should submit an application for deviation approval.
  1. Homebound Instruction

Homebound instruction can be provided in-person when required by the student’s IEP and in compliance with IDPH safety requirements (including face covering, hand washing, symptom and temperature checks, cleaning and sanitizing equipment and materials, and social distancing). Districts can consider a hybrid of in-person and virtual instruction or full remote instruction, as long as at least two hours of direct instruction are provided.

  1. Health and Safety Factors
  • Medically fragile and immunocompromised students. The guidance recommends that IEP teams review students’ health care plans and determine any potentially harmful effects that may result from the return to in-person instruction and risk of exposure to COVID-19. If a student is at higher risk of infection or severe illness, the team may consider remote learning or homebound instruction. If a student with health-related needs will return to in-person instruction, the team should consider if any additional precautions are needed related to cleaning and PPE.
  • Physical prompting. Hand-over-hand instruction and physical prompting and cuing may be used. Properly fitting face coverings decrease the spread of COVID-19; gloves or other PPE may also be worn and supplies and equipment should be sanitized regularly.
  • Service animals. The CDC provides that service animals can contract COVID-19. Other students and staff should not handle or have direct contact with the service animal but maintain social distancing.
  1. IEP Meetings/Mediations/Due Process
  • In-person v. Remote. If agreed to by the parties, these meetings, as well as special education evaluations, staff meetings, and professional development, can be conducted in-person. During any meeting, the generally applicable safety requirements are in effect. The opportunity to participate via alternative means should continue to be available.
  • Addressing the impact of remote learning. Under Endrew F. and Department of Education guidance, IEP teams should convene if a student is not making expected progress and changes to the IEP may be warranted. Upon return to in-person instruction, teams should convene if the student is not on track to meet IEP goals. Revisions related to goals, services, placement, or methodology may be considered to ensure the student is receiving FAPE. Parents may also request IEP meetings.
  1. Delivery of Special Education Instruction and Related Services
  • Impact of Face Coverings on Instruction and Related Service. Districts should consider the impact that face coverings will have on a student’s ability to access instruction, especially students with hearing loss or communication deficits. Note that students with medical contraindication may not be able to wear face coverings. ISBE recommends requiring a physician excuse in such cases, as well as consulting with counsel to determine how to accommodate these students while protecting the health and safety of staff and other students.
  • Addressing Student Social/Emotional Needs. Districts should plan to address student social emotional needs, including plans for students who struggle with transitions and preparing students who may not understand social distancing rules. Consider social stories and additional social work/counseling services at the time of transition.
  • Providing Service from Itinerant Staff. Communicate with other serving entities, such as cooperatives or private agencies, to establish safety protocols for staff who may be serving students in different buildings. Consider “safe spaces” within buildings to provide instruction and minimize contact with others in the school building, while maintaining social distance requirements. Communicate with families to consider whether some services may be delivered remotely to minimize risks.
  • Considerations for Transition Programming. Districts should consult with the local health department before transition to off-campus job sites and visits to the community. Districts are encouraged to address transition goals by creating in-district work experiences that can help students achieve postsecondary goals.
  1. Private Special Education Schools
  • Transportation Services. If the student’s resident district is operating remotely, but the student is placed at a private day school that has transitioned to in-person instruction, transportation must be provided. Such transportation must align with the safety measures set forth in the general reopening guidance, which includes limits on numbers of students in busses and face covering requirements.
  • Fire Inspection Compliance for Private Schools. This requirement has not been waived. If a private special education school is having difficulty scheduling a fire inspection, the School is encouraged to contact ISBE’s Special Education Department for assistance.
  • Billing and Reimbursement for Tuition / Room and Board. During return to in-person instruction, resident school districts will be responsible for payment of tuition/room and board, and will receive reimbursement per the statutory formula under Section 12-7.02 of the School Code (tuition) and Part B of the IDEA pursuant to Section 14-8.01 of the School Code (room and board).
  • On-site Reviews for Private Special Education Schools. Travel by ISBE personnel for on-site reviews is governed by the Governor’s Office and the IDPH. Expect site visits that observe PPE and social distancing requirements once travel is permitted.
  • Class size rules for Private Special Education Schools. These requirements remain the same, with an age range of 4 years at the elementary level and 6 years at the secondary level.  Class sizes of 5 students are permitted with one special education teacher; up to 10 students are permitted with a full-time paraprofessional also assigned. All classes must adhere to safety requirements established by the IDPH and local health department.
  • Permissibility of Smaller Class Sizes. Private special education schools may decrease class sizes during transition to in-person instruction as long as they comport with staffing requirements for licensed personnel in each classroom.

You can access ISBE’s complete Special Education FAQ here. As always, if you have questions, please contact your Franczek attorney.