Welcome to the 2021-2022 school year. As the new year gets underway, the Office of Special Education and Rehabilitative Services (OSERS) within the Department of Education advised states and districts that it will be providing a series of guidance documents addressing “school reopening efforts and intended to support the full implementation of IDEA requirements.” The letter emphasizes and reiterates the guidance provided throughout 2020 that no IDEA requirements were waived and that, regardless of the instructional delivery approach, districts remain responsible for ensuring that a free appropriate public education (FAPE) is available to all children with disabilities. The first guidance document addresses child find, reviewing well-established principles and commenting on the impact of the pandemic. Read on for highlights.
Welcome to the 2021-2022 school year! As we begin, special education leaders should take note of several new laws recently signed by the Governor. We have been talking a lot about HB 40 and HB 2748, which extend transition services for students who turn 22. But several others also deserve our attention, including new laws that limit the use of time out and physical restraint, require districts to ensure their websites and remote learning platforms are accessible to people with disabilities, require IEP teams to provide PUNS information to families at annual reviews, require the consideration of in-State residential programs, allow student absences related to mental or behavioral health, create the High Cost Special Education Funding Commission, and require daily play time for students in kindergarten through fifth grade. Read on for more details.
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.
Earlier this summer, we let you know about two special education bills that had passed the Illinois legislature, which, if signed by the Governor, would provide additional services to some transition students. These bills have both been signed by the Governor, and ISBE has issued an FAQ to address the many questions from the field on how these laws will work in practice.
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.
On June 11, 2021, Kendra Yoch and Amy Dickerson hosted the sixth session of Franczek’s Educational Equity Webinar Series. This session focused on issues of disproportionality in special education and methods of increasing equity and inclusion for students with disabilities. Our guests were Dr. Cheryl Caesar, Assistant Director of Diverse Learners at Waukegan Community Unit School District; Jeremy Duffy, Senior Legal Compliance Officer at Waukegan Community Unit School District; and Dr. Jennifer Sterpin, Director of Special Education at Lake Forest High School District 115.
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.
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.
On May 30, 2021, the Illinois legislature passed HB219, which will further restrict the use of time out and physical restraint in Illinois schools. The legislation will take effect upon signature by Governor Pritzker. You may recall that similar bills have been introduced over the last several sessions, and the current bill is very similar to the version we previously highlighted for you. The legislature took action at the close of this session and just days following the publication of another Pro Publica article showing continued reliance on time out and physical restraint, despite reduced in-person instruction this year. The main components of the bill include (1) additional oversight from ISBE; (2) district level plans to reduce the use of isolated time out, time out, and physical restraint; (3) codification of definitions and rules in the current regulations (with a few modifications); and (4) the opportunity for parents to request a post-incident meeting to debrief.
On May 13, 2021, the Department of Education Office for Civil Rights published a Q&A on Civil Rights and School Reopening in the COVID-19 Environment. The document is aimed at “helping schools reopen safely and in ways that support equity among students” and addresses obligations under Section 504 (prohibiting discrimination on the basis of disability), Title VI (prohibiting discrimination on the basis of race, color, or national origin), and Title IX (prohibiting discrimination based on sex). In the disability section, most of the answers repeat or expand on prior guidance from the Department. And on the one question where we are anticipating new guidance, the answer: keep anticipating. “The Department is aware of important questions regarding compensatory services for students with disabilities and plans to address those in a separate guidance document.” A brief summary of the other answers follows.
To start, yes, public schools still have to comply with Section 504 (was there any doubt?). Given that obligation, when schools are operating remotely, students are still entitled to FAPE and Section 504 teams and IEP teams need to make individualized determinations about whether adjustments are needed in this new model. This guidance echoes what the Department has said since early in the pandemic. The Q&A also reiterates that remote learning services must be provided in a way that is accessible to students with disabilities (accommodations like captioning on videos and audio versions of written text).