As a number of articles have pointed out, many disabled students seem to have been disproportionately disadvantaged by the switch to remote learning in the spring, even if that move was justified on the basis of public health. And I know that a lot of folks have questions about the status of IEPs as public schools start back up, with some of them being in person, some being hybrid, and some being fully online.
This new document is pretty clear that districts are still required to follow IEPs: districts are required “to provide special education and related services to students with individualized education program (IEPs), ages three to 26, despite the challenges posed during the COVID-19 pandemic and public health emergency” (p. 3). This document does not replace MARSE or IDEA or otherwise alter schools legal obligations to students with IEPs.* It instead “establish[es] special education priority topics” (p. 3) to help schools follow state and federal educational policy.
Some parents are unclear about the relationship between the contingency learning plans (CLPs) mentioned in the new “Guidance” and IEPs. CLPS do not replace IEPs. CLPs are not required by either MARSE or IDEA. they are instead for the “purpose of supporting districts in meeting their [legal] obligations to provide a free appropriate public education (FAPE) for students with disabilities.” So, unless an IEP has expired (which would be a violation of IDEA) or updated/replaced with a new one, the IEP in place when the pandemic hit last spring is still binding. CLPs can be referenced in updated IEPs, but are not themselves part of IEPs. (It is not clear to me that CLPs are legally binding on schools, while IEPs clearly are.)
The new “Guidance” contains six priority topics. The first of these makes clear that districts are still legally obligated to provide FAPE. Any supplementary aids and services that are part of a student’s IEP must still be provided, even under this new document. In fact, CLPs are to help ensure that the district does provide these aids and services (p. 5).
If a district is able to provide everything required by an IEP remotely, then they are able to. But if they cannot, “the district may have to provide certain services in person” (p. 6) despite general instruction in the district being remote.
If a district is unable to provide FAPE during the pandemic (which the “Guidance” admits is possible on p. 4), the district has until December 2020 to determine whether recovery services must be provided by the district due to the disruption of instruction and special education services during this past spring (p. 8). Further Extended School Year (ESY) services may also be required due to the need to recoup skills and make progress after the interruption in instruction (p. 9). When prioritizing recovery services, districts must prioritize students who “did not receive special education services” due to the pandemic (p. 9) as well as students who were “unable to access special education services during learning from a distance” (p. 9).
All parents of public school students with IEPs should request (in writing–always in writing) the district’s plan to provide compensatory education services (p. 17):
Pursuant to Executive Order 2020-142, Part 4.d., “districts shall, to the extent practicable and necessary, make individualized determinations whether and to what extent compensatory services may be needed for students in light of the school closures during the 2019–2020 school year.” Compensatory education determinations must be based on applicable IDEA and state law and guidance.
Under IDEA, compensatory education is a legal remedy awarded to a student with a disability because of a district error or neglect that resulted in a denial of a FAPE and a loss of educational benefit. “Compensatory awards should aim to place disabled children in the same position they would have occupied but for the school district’s violations of IDEA.” Board of Education v. L.M. 478 F.3d 307, 317 (6th Cir. 2007)
Parents that have to participate in their children’s instruction due to online learning environments can also request training (to be provided by the district and at their expense) in how to use the technology the school is using, but also pedagogical and therapeutic training that may be needed to help students access their education. As always, requests that districts provide such services should be made in writing.
*Some aspects of early childhood special education programs for children under 5 were waived by the state to assist districts in meeting the requirements of Executive Order 2020-65 (see p. 13).