Remote Learning Days - Special Education FAQ
Special Education FAQ
SE1. For Remote Learning Days, will school districts be responsible for providing FAPE on those days? If so, will it be requires that the services match the student's current IEP? All of the minutes and related services?
Because these days will be considered instructional days, the federal Department of Education's Fact Sheet suggests that FAPE will be required on these days, but in a manner that accounts for remote learning:
School districts must provide a free and appropriate public education (FAPE) consistent with the need to protect the health and safety of students with disabilities and those individuals providing education, specialized instruction, and related services to these students. In this unique and ever-changing environment, OCR and OSERS recognize that these exceptional circumstances may affect how all educational and related services and supports are provided, and the Department will offer flexibility where possible. However, school districts must remember that the provision of FAPE may include, as appropriate, special education and related services provided through distance instruction provided virtually, online, or telephonically.
If the services (and minutes) provided remotely do not match a student's current IEP, then the IEP will have to be amended (either through an IEP meeting or IEP amendment). However, the services (including related services provided remotely) should allow the student to make appropriate progress on his or her IEP goals (and, to the extent appropriate, the general curriculum). This can be accomplished by attaching or including an individualized remote learning plan with the current IEP.
As the IEP team is making the individual decision on how to serve a student, the federal guidance also provides the following guidance:
In this unique and ever-changing environment, OCR and OSERS recognize that these exceptional circumstances may affect how all educational and related services and supports are provided, and the Department will offer flexibility where possible. However, school districts must remember that the provision of FAPE may include, as appropriate, special education and related services provided through distance instruction provided virtually, online, or telephonically.
The Department understands that, during this national emergency, schools may not be able to provide all services in the same manner they are typically provided. While some schools might choose to safely, and in accordance with state law, provide certain IEP services to some students in-person, it may be unfeasible or unsafe for some institutions, during current emergency school closures, to provide hands-on physical therapy, occupational therapy, or tactile sign language educational services. Many disability-related modifications and services may be effectively provided online. These may include, for instance, extensions of time for assignments, videos with accurate captioning or embedded sign language interpreting, accessible reading materials, and many speech or language services through video conferencing ...
Finally, although federal law requires distance instruction to be accessible to students with disabilities, it does not mandate specific methodologies. Where technology itself imposes a barrier to access or where educational materials simply are not available in an accessible format, educators may still meet their legal obligations by providing children with disabilities equally effective alternate access to the curriculum or services provided to other students. For example, if a teacher who has a blind student in her class is working from home and cannot distribute a document accessible to that student, she can distribute to the rest of the class an inaccessible document and, if appropriate for the student, read the document over the phone to the blind student or provide the blind student with an audio recording of a reading of the document aloud.
The federal guidance indicates that school districts are not relieved from the obligation of providing IEP students with FAPE. Rather, it simply requires that FAPE be provided through alternate means. When the IEP team is considering what would be appropriate progress in light of the child's circumstances, as required in Endrew F., a significant component of the child's circumstances is the requirement that the education be provided via alternate and remote means.
SE2. How will school districts conduct IEP meetings or amend IEPs in preparation for Remote Learning Days?
For the mandated closures March 17-30, 2020, ISBE noted that "to the extent practicable, districts should continue to meet any obligations relating to convening IEP meetings and complying with timelines for due process hearings and mediations. Schools may avail themselves of alternate means of meeting, including telephone or videoconference." Nothing appears to have changed that directive in the subsequent closures.
In addition, the federal Department of Education and OSERS released a Supplemental Fact Sheet on March 21, 2020, which encourages working with parents on flexibility in scheduling:
As a general principle, during this unprecedented national emergency, public agencies are encouraged to work with parents to reach mutually agreeable extensions of time, as appropriate.
Otherwise, meetings and deadlines should occur as required by the state and federal regulations.
For annual review deadlines and other deadlines that are date-dependent (i.e. an annual review that must be completed by May 1), the school district must still make sure that the meetings are happening by the required deadline. The ISBE guidance indicates the same: "ISBE continues to expect that all districts will comply with requirements to timely convene IEP meetings for students. Schools may wish to avail themselves of the opportunity to ensure parent participation at meetings via alternate means, including telephone or videoconference, which are allowable under the Individuals with Disabilities Education Act."
At any point that schools are open, school districts should continue to have IEP meetings as usual, taking into account the recommendations on hand-washing, not shaking hands, sitting further apart, and other social distancing. It is prudent to inform parents of their option to participate by phone or video conference, and schools can encourage remote participation if the school finds it is necessary or if recommended by the health department.
For deadlines that are not date-dependent, such as an evaluation timeline (i.e. parent consented to an evaluation on February 20th, and the evaluation and EDC/IEP must be completed within 60 school days), the answer depends on whether school is open or closed. For school closures, the closure days would toll the 60 school days, so that the deadline would be pushed back accordingly.
SE3. What does a school district do when a parent insists on an in-person meeting during the school closure?
The most recent ISBE guidance suggests that meetings via phone or video conferences require parental agreement, it is reasonable and prudent to require meetings to happen via remote means during the Governor's "Stay at Home" executive order or as health protocols require.
SE4. What if the team believes that an assessment that can only be administered in-person is necessary to conduct an appropriate evaluation? Is that a legitimate basis to delay the evaluation until school resumes?
Unless the parents specifically agree otherwise, the evaluation must be conducted in a timely manner. If the school district is unable to therefore complete the necessary assessments to determine eligibility, then it will have to conduct the eligibility meeting and make an eligibility decision based on the available data. If the available data is insufficient to appropriate determine eligibility and/or the nature and extent of the student's educational needs, the team could document the efforts in a manner similar to the following:
Because the team was prevented from completing necessary assessments as a direct result of school closures mandated by the Governor of Illinois during the COVID-19 pandemic, the multidisciplinary team was unable to determine whether (Student) has a disability and is in need of special education. Upon the resumption of school operations permitting completion of necessary assessments, the team will reconvene the domain meeting and renew the request for parental consent to perform the necessary assessments and will revisit the issue of eligibility.