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Attorney focused on representing school districts, colleges, and universities.

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?

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

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

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.

Continue Reading ISBE Issues FAQ Regarding Special Education During Remote Learning

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

Last week, ISBE reversed course on isolated time out. After initially banning the practice in late November 2019, ISBE heard from many stakeholders that having a staff member in a time out room with an escalated student was often unsafe. The recent amendment to the emergency rules seeks to limit and regulate the use of isolated time out rather than prohibit it altogether. Accordingly, ISBE updated its Guidance and Frequently Asked Questions and reporting form to reflect the new development.
Continue Reading Isolated Time Out is Back (for now): ISBE Issues Revised Guidance and Reporting Form After Second Amendment to Emergency Rules on Time Out and Physical Restraint

On February 14, 2020, ISBE issued notice that it will no longer provide reimbursement for students placed at non-approved special education facilities, even if the placement is ordered by a hearing officer. In a brief memorandum to Illinois special education due process hearing officers and state directors of special education, ISBE announced the change, which is effective immediately. This change will have important impacts on Illinois public schools.

In Illinois, districts can receive reimbursement from the Illinois State Board of Education (ISBE) for students placed at “approved” private day and residential schools. To be approved, the private school must meet the eligibility standards set out in Part 401 of the Illinois Administrative Code. These requirements were amended in March 2018, and the stricter rules meant that many residential schools that had previously been approved no longer were. Many districts found it difficult to place students in appropriate and approved residential placements given the decrease in availability.


Continue Reading ISBE Cuts Off Reimbursements for Hearing Officer Ordered Placements in Non-Approved Special Education Facilities

In response to outcry from educators in and outside of Illinois about the legitimate need to use prone and supine restraint for certain diverse learners and the lack of notice to allow teams to identify alternative techniques, the Illinois State Board of Education amended its recent emergency rules to allow the practices on a limited basis if certain conditions are met. What are our initial insights from the amended rules?

Continue Reading ISBE Amends Emergency Rules on Time Out and Physical Restraint