Extended School Closings and FAPE
Blech. I don’t even know where to begin. All at the same time, things are moving so rapidly, and yet it feels like time is standing still. This is a post full of duplicate information that I’ve had to repackage for several reasons.
One being–the information has changed since I first posted it. Second, as bloggers, we have since learned that both Google and some advertisers are penalizing websites that include certain C words in their content. They either do not want to be associated with negativity. Or, in Google’s case, they are sorting out reliable sources and prioritizing them, like the CDC.
The fact is, my readers are looking for this information. But at this point in time, the ad income on the site has dropped dramatically because I have those words in some posts. So in the spirit of having a brand new clean post that does not have those words, here we go. I am scrapping the other posts and putting it all here. I also will update this post as new information becomes available.
- What to do if your Child is not Receiving FAPE during the crisis.
- online IEP Meetings due to Mandatory Closings | Tips and Guidelines
- Crisis School Closings | Will your child still receive IEP services?
Check your State’s Dept of Ed Website
It’s important to note that different states are doing different things. Some states are requiring work and some are not. At the time of this writing, there are still 7 states who have not closed schools and several that have closed school for the rest of the 2019/2020 year.
Here is the latest from the US Dept of Ed, posted March 22.
Here is a presentation done by both an attorney who works for districts and one who works for the Education Law Center.
Stay Positive and Patient!
A reminder that this is new territory for everyone. Stay positive and patient.
Your child may not be eligible for FAPE.
Remember, if your school shuts down for this crisis, your child is only eligible for FAPE if they are providing services to other children. If they are not providing any services to any kids, you should not expect them either.
So, to clarify before I get into this, this post is for the child who is at home due to extended school closings, the rest of the district is receiving online or other distance-learning services and none have been arranged for your child. And/or online or distance learning is not appropriate for your child.
What to do if your child is not receiving FAPE.
- Be patient and let the dust settle. This is all happening very quickly. My state went from its first case to a complete statewide shutdown in a week. School personnel have not had time to react personally or professionally. Give them a few days, check your school district website for updates. Distance Learning plans or an announcement related to learning during the break should be announced at some point. That likely will not be the first day or the second day.
- Read your IEP. Always start with the basics. Review the current IEP and take notes of what should be happening, if your child was in school.
- Learn what is being offered for non-IEP kids. I don’t believe that each child with an IEP should be expecting comp ed or some type of reimbursement for every hour of every day that was missed. However, they should expect to receive something comparable to what the other students are receiving during the time away from school.
- Give your child what they need. In the interim, it is going to be on us as parents to provide what our kids need during this time away from school. Many parents successfully homeschool their disabled children. These are new and uncertain challenges, we just have to do the best with what we have.
- Keep good data. While you are on this break, keep data on what you are doing and what was missed during the break. I did a whole separate post about IEP regression.
- Communicate. Ask your team for ideas of what can be done at home. What activities and exercises can you reinforce and practice? What online resources would they recommend that you learn from as a parent?
- Brainstorm and be solution-oriented. When school returns, what are some ways that your child can start to work at a faster or more intense pace? Are after school services an option? Is there any room left in the daily schedule to add in more supports and services? What do you wish to see? Have ideas ready, other than returning to “My child didn’t receive FAPE over the break, and now I want make-ups.” Define it for them.
- Email an attorney. If you think you have a comp ed claim, email an attorney with your story and ask. Maybe you can do a virtual consult with them while we’re all quarantined. Go on their recommendations if you are going to develop a plan to pursue this. It is unlikely that the school is going to come to you and offer this. It will be on you, the parent, to learn how to request this.
- Think about ESY. I certainly hope that we’re all back to school by ESY time. Think about what could be done during ESY that is different from other years. What could your child do or what program options do they have so that you could combine ESY and some type of remediation from this extended break?
Online IEP Meetings During Shutdown
What happens if my IEP expires during the school shutdown?
IEPs do not expire. A school cannot exit a child from an IEP without evaluations. The current IEP, in its entirety, remains in effect until a new IEP is developed.
If your school postpones the IEP meeting until school resumes, you cannot force an online meeting. The flip side of that is that the school also cannot force a phone or online meeting on you if you are unable to do it. Schools will be given a tremendous amount of leeway in the coming weeks and months and they do not “have to” meet in order to meet the annual deadline.
My school wants me to do an online or phone meeting.
I have several thoughts on this. First, in the spirit of cooperation, I think you should. You’ve already put this meeting date on your calendar, the actual meeting is just going to look a bit different.
But, that being said, I loathe phone conferences. I would strongly recommend you try to do Zoom or something else.
The rules are the same-all mandated IEP team members must be there or have your written permission to be excused. Otherwise, it was not an IEP meeting. Here is what IDEA says:
- A member of the IEP Team may be excused from attending an IEP meeting, in whole or in part, when the meeting involves a modification to or discussion of the member’s area of the curriculum or related services, if—
And, since you’re not meeting in person, do your due diligence. Make sure you do a parent concerns letter beforehand. And, always follow up with an after IEP meeting email. This is extra important now, since you may not see your team for a while, or they may not get the final IEP to you until school returns.
My child was in the process of being evaluated, now what?
Evaluations should resume when you get back to school. Yes, IDEA defines the 60-day timeline to mean calendar days. But these are extraordinary circumstances. I think that time spent fighting this (holding them to the 60-day timeline) is time wasted. Focus on the big picture, is a couple of weeks really going to make a difference?
Most assessments and evaluations require 1:1 contact and observation and that’s just not possible right now.
Can the school have an IEP meeting without me?
If you needed to reschedule the IEP meeting anyway, you can still do so. As always, a school’s administrative deadlines do not trump your right to meaningful parent participation. Schools can only have a meeting without you under very specific circumstances. Per IDEA, they are:
(c) Other methods to ensure parent participation. If neither parent can attend an IEP Team meeting, the public agency must use other methods to ensure parent participation, including individual or conference telephone calls, consistent with §300.328 (related to alternative means of meeting participation).
(d) Conducting an IEP Team meeting without a parent in attendance. A meeting may be conducted without a parent in attendance if the public agency is unable to convince the parents that they should attend. In this case, the public agency must keep a record of its attempts to arrange a mutually agreed on time and place, such as—
(1) Detailed records of telephone calls made or attempted and the results of those calls;
(2) Copies of correspondence sent to the parents and any responses received; and
(3) Detailed records of visits made to the parent’s home or place of employment and the results of those visits.
Other Tips for Online IEP Meetings
Just some other tips and guidance.
Remember, this is new to all of us. Our country hasn’t done this in over 100 years. It’s stressful for everyone.
Monitor your own mental health and attitudes, and think twice before sending email correspondence to your IEP team. And, to that end, be mindful that someone who sent you a not-so-nice email or message might be terribly stressed out themselves. Their disposition may have nothing to do with you.
If you were my advocacy client, I would strongly encourage you to do the online meetings if you have internet access and the time available. There’s really nothing to be gained by postponing it until school returns. When we go back, it’s going to be hectic and stressful getting back to our normal routine. Just get it out of the way now, call another meeting in the future if you need to.
Guidance from COPAA
Here is the abbreviated guidance from COPAA. You can check their website for full details. I am not including their full wording because they frequently use the ‘banned’ words.
Given growing concerns and uncertainty regarding the outbreak, the Council of Parent Attorneys and Advocates, Inc. (COPAA) is extremely concerned about the impact of the said outbreak on students with disabilities and their families. It is essential that families make decisions about the safety and welfare of their children in consultation with local schools and communities and that families know the rights and requirements under Federal law during such emergency situations. COPAA wishes our members and the entire community health and safety in the coming weeks.
Under Federal law, State and local educational agencies are required to provide all children eligible for special education and related services under the Individuals with Disabilities Education Act (IDEA) with a free appropriate public education (FAPE). While the IDEA does grant the Secretary of Education the authority to waive state maintenance of effort (MOE) requirements and requirements to supplement, not supplant, federal funds under certain circumstances, the Secretary does not have the authority to grant waivers to FAPE under IDEA. COPAA has a grave concern with the Department of Education’s proposition that students with disabilities are not entitled to services during school closure. COPAA believes the obligation remains.
If schools close for only a brief time for all students, the school district must maintain continuity of learning by providing educational services to students with Individualized Education Programs (IEPs). For such temporary emergency closures, the provision of homebound services such as instructional telephone calls, homework packets, Internet-based lessons, and other available distance-based learning approaches is not considered a change in placement
If schools close for an extended period of time (generally more than 10 consecutive school days), then school administration officials and the child’s IEP team must determine whether the child is available for instruction and could benefit from homebound services such as instructional telephone calls, homework packets, Internet-based lessons, and other distance-based learning approaches. Even prior to that point, a child’s parent may request an IEP team meeting to discuss the potential need for special education and related services, if the exclusion is likely to be of extended duration. If neither parent can attend an IEP team meeting, the school must use other methods to ensure parent participation, including individual or conference telephone calls, consistent with 34 CFR §§ 300.322(c) and 300.328.
If schools are developing plans for online learning for students, they also need to plan for students with disabilities. If an eligible student with a disability is required to stay home at the advice of their physician, due to vulnerability concerns or due to testing positive for the disease, the IEP team should convene to discuss the need for special education and related services, available distance-based learning approaches, or compensatory education in the case of an extended absence.
Due to an increasing number of troubling news reports, on March 4, 2020, the Office for Civil Rights wrote to all Education Leaders to clarify federal protections that exist for students who become victims of “stereotyping, harassment, and bullying directed at persons perceived to be of Chinese American or, more generally, Asian descent…” and that “[states and school districts] must take special care to ensure that all students are able to study and learn in an environment that is healthy, safe, and free from bias or discrimination.”
COPAA update March 22
The U.S. Department of Education (ED) has just released Supplemental Fact Sheet Addressing the “disease” in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities. The Council of Parent Attorneys and Advocates (COPAA) appreciates the helpful clarification that educators must make an effort to provide an education to students with disabilities. As noted in the release: “Some educators, however, have been reluctant to provide any distance instruction because they believe that federal disability law presents insurmountable barriers to remote education. This is simply not true. We remind schools they should not opt to close or decline to provide distance instruction, at the expense of students, to address matters pertaining to services for students with disabilities.” COPAA is hopeful that this helps schools and districts understand how they can partner and collaborate with families to provide students with educational services. These clarifications help further support why states do not need any waivers of IDEA’s requirements.
COPAA reiterates that the Individuals with Disabilities Education Act (IDEA) supports individualization for students and requires partnership with parents. Though no one likes the crisis in which we all now live; and, while we want every citizen to be safe and healthy, we do appreciate the efforts made by many school teams on behalf of students nationwide. COPAA members have reported examples of schools and districts that are embracing their responsibility and stepping up in innovative ways to meet the needs of students while physical buildings are closed. States, such as Ohio have taken measures to approve services for students whose evaluations are pending; and many other schools and their teachers are assuring continuity of learning and therapies which are critical for students with disabilities. COPAA asks every school to make every effort to do the same in safe and healthy ways.
Finally, for any of this to happen on a broad scale with effectiveness, Congress must include additional funding to states in the stimulus package so that teachers, school leaders, students and their families have access to technology or other distance tools and resources they need to provide accessible, online instruction, therapies and other related services and supports to students. We urge Congress to provide funding now.
COPAA will send updates as developments on ‘this crisis’ continues to emerge.
COPAA is actively monitoring updates from the U.S. Department of Education and will keep you apprised of any new resources.