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.
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.
While only a handful of cases have been reported related to districts’ provision of special education services remotely, we are watching carefully for lessons learned. So far, courts have not required in-person instruction as stay-put, but have indicated the importance of providing remote services tailored to student needs. These early cases reinforce our guidance to make individualized decisions to meet student needs in these extraordinary circumstances. Further, documenting these determinations in an individualized remote learning plan that is incorporated into the student’s IEP can help guard against both procedural and substantive challenges.
Schools planning for students to return to campus in person this fall are confronting many significant challenges, including how to support students who may need physical restraint while also maintaining safe practices to minimize the risk of Coronavirus transmission. Schools and IEP teams should start planning to address this issue, such as considering whether additional PPE is needed, whether alternative behavior strategies and interventions could be effective, and whether other changes to the student’s IEP, including placement, may be warranted to safely provide the student an appropriate education.
Additionally, staff need training to understand and comply with the new physical restraint and time out rules issued this spring. While some of the required training can be done remotely, training related to physical restraint must be done in person. ISBE advised in its recently updated Guidance and FAQ document that the required eight hours of annual training for the 2020-2021 school year must be completed by December 31, 2020.
ISBE and IDPH recently released their guidance related to Starting the 2020-21 School Year. The guidance addresses a broad range of topics, including some suggestions related to special education. The following week ISBE issued an FAQ targeting special education issues. While many details remain to be worked out at the local level, here are our key takeaways related to placing a high priority on returning students with disabilities to in-person instruction, addressing the needs of medically fragile students, continued remote learning versus homebound instruction, face coverings, and the many demands and challenges facing IEP teams.
First, ISBE states that “high priority should be placed on providing in-person instruction for students with IEPs [and] 504 plans.” Additionally, “these students should be in attendance in-person daily during Blended Remote Learning Days.” Developing a plan to manage the learning and safety needs of an entire school and entire district, cooperative, or network is a major undertaking that includes balancing many competing demands. Given the additional needs of students with IEPs and 504 plans, as well as their additional legal protections (and the corresponding risks to not providing adequate services), prioritizing these students for in-person instruction is prudent.
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.
We recently let you know about a pending bill that would make changes to several special education procedures. Senate Bill 1569 has now been signed by Governor Pritzker as PA 101-0643. The law makes numerous changes related to remote learning. For purposes of special education, consider the following action steps to meet the new requirements:
Less than a year ago, Public Act 101-0515 sent Illinois special educators scrambling to comply with an array of new procedural requirements. IAASE and other groups have been working to bring additional clarity to the law and make it more workable for schools while maintaining the original focus on parent participation. Senate Bill 1569 just passed in the legislature and, if signed, would make changes in each of the areas impacted by the original Act. Although you’re busy dealing with the challenges related to remote learning and preparing for the unknowns of next school year, take a few minutes to review the changes below and get ready to make a couple additional modifications to your processes.
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.
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:
- the nature of the disability and degree of impairment; and
- emerging skills, and areas of learning crucial for independence.