On July 26, 2021, the Office for Civil Rights (OCR) and Office for Special Education and Rehabilitative Services (OSERS) issued a Factsheet explaining the potential for students who have been infected with COVID-19 to experience new, returning, or ongoing post-COVID health problems that may qualify as a disability under Section 504 or the IDEA. The Factsheet reinforces the need to follow standard Section 504 and IDEA procedures related to child find, evaluations, eligibility, and services and modifications for such students. The challenges of the last year and a half have led to a variety of health, academic, and social/emotional difficulties for students, all of which must be reviewed on an individual basis to determine if they indicate a disability.

Continue Reading Students with Long COVID May Need Support Under Section 504 or the IDEA

In this immediate post-COVID-19 education landscape in which schools are contemplating a full return to in-person instruction, schools are also grappling with the stark realities of achievement gaps and the disproportionate impacts that the pandemic and remote learning had on various student populations. In response to President Biden’s Executive Order calling for the Assistant Secretary for Civil Rights in the Department of Education to deliver a report on the disparate impacts of COVID-19 on students in elementary, secondary, and higher education, the Department’s Office for Civil Rights (OCR) published this Report. The introduction to the Report states that “Although this Report provides a data-driven account of COVID-19’s disparate impacts on students, rather than a legal analysis, it is important to recognize that disparities can sometimes be evidence of legal injuries under Federal civil rights laws, even when policies and practices do not directly single out a group of people for harm.” Accordingly, while the purpose of the Report is to take stock of the impact of the pandemic on students, including the particular challenges encountered by students of color, students learning English, students with disabilities, and students who identify as LGBTQ+, and to set the stage for anticipated future guidance and resources to address these disparities, schools should take note of the potential legal implications as well.

Continue Reading New Department of Education Report Highlights the Disparate Impacts of COVID-19 on Students

On May 30, 2021, SB1577 passed both houses and, if signed by the Governor, will amend the School Code to reflect that the mental or behavioral health of a student is a “valid cause” for absence from school. Currently, valid exemptions recognized for school-age children to be absent include but are not limited to illness, religious holidays, death in the immediate family, and family emergencies. Additionally, in January 2019, “other circumstances which cause reasonable concern to the parent for the mental, emotional, or physical health or safety of the student” was added. The most recent amendment would allow parents to keep their student home from school for “the mental or behavioral health of the child for up to 5 days for which the child need not provide a medical note.” The bill also provides that the mental or behavioral health absence will be considered an excused absence and the student will be given the opportunity to make up their missed schoolwork.

Continue Reading Mental Health and Behavioral Health Days – Are Your Child Find Senses Tingling?

Just hours before the conclusion of the spring legislative session, the Illinois General Assembly passed two bills that will significantly impact students who receive services until age 22. 

The first, HB40, impacts students who turn 22 during the school year by allowing them to continue to receive special education services until the end of that school year rather than until the day before their 22nd birthday. This is a change we have been anticipating for some time, and will take effect upon the Governor’s signature.   

The second, HB 2748, titled “COVID-19 post-secondary transition recovery eligibility,” provides an extended period of IEP services for students who turned 22 “during the time in which the student’s in-person instruction, services, or activities” were “suspended for a period of 3 months or more during the school year as a result of the COVID-19 pandemic.”  Students who fit these criteria are eligible for services through the end of the regular 2021-2022 school year.  

Continue Reading Two New Bills Offer Extended Special Education Services to Transition Students

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.

Continue Reading COVID 19-Handbook V.2: What are the Implications for Special Education?

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.

Continue Reading Outgoing OCR Opens Investigations Into Special Education Services During Remote Learning

*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.

Continue Reading Is Providing Services to the Greatest Extent Possible Enough?

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:

Illinois

Federal

  • Prohibit prone restraint
  • Require schools to offer a meeting to parents after each incident of restraint or time out
  • Require districts to create oversight teams to develop school-specific plans to reduce and eventually eliminate the use of physical restraint and time out, as well as annual reporting on progress
  • Subject to appropriation, provide grants for schools to implement positive behavioral interventions and supports aimed at reducing the need for physical restraint and time out
 
  • Prohibit prone and supine restraint and seclusion
  • Limit on the use of physical restraint and prohibit including it as a planned intervention in a student’s IEP or BIP
  • Require a meeting with parents and staff after an incident of restraint
  • Provide for a State-approved crisis intervention training program, as well as state mechanisms to effectively monitor and enforce compliance
  • Provide for a private right of action
  • Provide for grants to states to assist with complying with the new legislation, collecting and analyzing data, and improving school climate and culture


Continue Reading Proposed State and Federal Legislation Would Further Reduce Physical Restraint and Time Out in Schools

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.


Continue Reading What Will a Biden-Harris Administration Mean for Special Education?

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.

Continue Reading OCR and OSEP Issue New Q&As related to Special Education in the Current COVID-19 Environment