How are IEPs and free, appropriate public education (FAPE) impacted by distance learning, and what laws ensure your child’s access to modifications, accommodations, and services right now? Good news: the law is on your side. We asked two experts, special education attorney Grace Clark and special education advocate Dr. Sarah Pelangka, to weigh in on your legal rights during distance learning. 

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What SB 98 means for your IEP

Senate Bill 98 provides requirements that have some parents and educators feeling hopeful about distance learning for the new school year:

  • Every student’s IEP must now include directions for how the IEP will be provided under emergency conditions — such as a pandemic. The IEP must clearly articulate how a student’s support services and accommodations will be delivered during distance learning through a Distance Learning Plan (DLP).
     
  • Schools must provide a daily minimum of 180 instructional minutes for kindergarten, 230 minutes for grades 1–2, and 240 minutes for grades 4–12 (including live interaction with teachers and peers) during distance learning.
     
  • All regularly scheduled IEP meetings must now include the SB 98 addendum, even if things are going well.
     
  • The IEP should make clear which services and accommodations are specific to distance learning, and which reflect a permanent change to the IEP.
     
  • If the district removes IEP services and accommodations from your child’s DLP because they’re no longer appropriate due to distance learning, new accommodations must be added to address the unique challenges of learning from home.
     
  • Attendance is based on how your child participates according to what is written in their DLP, which is separate from their IEP.
     
  • If your child requires specific accommodations for distance learning (for example, daily 1:1 support from a paraprofessional or classroom aide to help them complete asynchronous assignments), they should have access to accommodations based on what is already written in their IEP or has been newly written in their DLP.
     
    • If these supports are not being provided, you may be able to seek reimbursement from the district for private services.

 

Distance Learning Plans (DLPs)

A Distance Learning Plan (DLP) is a temporary document that states how the district will help your child access their IEP during distance learning due to emergencies like COVID-19, and what the district will be responsible for providing. It goes into effect after the school has been closed for 10 days or more. Once the student returns to campus, the IEP takes precedence. Here’s the lowdown on DLPs:

  • If the district reduces the Specialized Academic Instruction (SAI) minutes listed in your child’s IEP, they’re required to document the reason for their decision — which cannot be for lack of resources or staff members.
     
  • The DLP also lets the service provider (which is you!) choose to reduce the student’s minutes to less than what they would receive in an in-person classroom. Your child can regain these minutes as soon as they’ve returned to in-person classes.
     
  • If you feel your child needs more minutes, you can also get that written into the DLP. 
     
  • Minutes are provided via live virtual instruction, videos, emails, consultations, and asynchronous work.
     
  • Accommodations for at-home distance learning that are not usually listed in your child’s IEP can be written into the DLP and provided to them.
     
  • If you notice that your child’s mental health is no longer being effectively supported by their school counselor during this time, you can request that services with a licensed therapist be added to their DLP. (Remember that your child cannot actually receive services from this therapist until doing an intake with them.)

 

FAPE and distance learning

Your child’s right to a free, appropriate public education (FAPE) and the rights and supports granted to them through the Individuals with Disabilities Education Act (IDEA) have not changed, regardless of the pandemic and distance learning. FAPE is protected by federal law in every circumstance; individual supports, however, may look different. Here’s what you need to know:

  • If you believe your child is no longer being provided with FAPE, discuss this with their teacher or case manager (having proof through collecting data and progress monitoring are the best ways to do this; check out the handy goal tracker we created to help you do this!) and request the services or modifications needed for your child to access their education.
     
  • If your child does not receive the requested service or accommodation, request an IEP meeting. If the IEP team also denies the request, they must provide you with a prior written notice, which is a document from the district explaining why they don’t believe they need to provide that service or accommodation to your child.
     
    • You can ask an attorney or advocate to review the prior written notice, and they can advise whether you should pursue the request with a compliance complaint, mediation, or due process.


Additional sessions/services and compensatory education

If a student has not been able to meet their goals during distance learning and is thus deprived of FAPE, they can seek additional sessions or compensatory education. Our experts agree that it’s too early in the distance learning process to know what compensatory education will look like, however, so they recommend requesting additional sessions or services through an IEP meeting and trying to resolve deficiencies through the district before seeking compensatory education. 

  • Compensatory education is awarded by a court of law if a family can show that their child was denied FAPE. It provides students with the educational benefit they would have received if they’d not been denied FAPE, and the amount is calculated to provide the educational benefits that likely would have accrued from special education services the school district should have supplied in the first place.
     
    • There must be evidence regarding the child’s specific education deficits and the specific compensatory measures required to correct them. (This goes back to collecting data and monitoring progress, or lack thereof.)
       
    • If you’d like to consult with a special education attorney or advocate, reach out to your Navigator. 

 

Important distance learning updates from the Department of Education for SpEd students

On September 28, 2020, the Department of Education (DOE) and the DOE’s Office of Special Education Programs (OSEP) each issued question-and-answer documents to address the operation of K–12 schools during the pandemic. Special education attorney Grace Clark broke them down for us here, and we’ve pulled out some highlights below:

Assessments

  • If a school district is offering only distance learning, it must still conduct evaluations and reevaluations within a reasonable time frame under the current circumstances, and in compliance with the IDEA and section 504.
     
  • During the pandemic, states have the flexibility to establish their own timelines within which the initial evaluation must be conducted through regulation or policy, or they can choose to adopt the timeline mandated by the IDEA, which provides that an initial evaluation must be conducted within 60 days of receiving parental consent for the evaluation. The IDEA regulations provide exceptions that permit extension of that time frame if a parent repeatedly fails or refuses to produce the child for assessment, or if the child enrolls in a new school district after the time frame began. 
     
  • Where an assessment requires an in-person component that is not possible due to social distancing measures, schools should make a good faith effort to conduct the assessment virtually, to the extent that it can be administered by trained personnel in conformance with the test producer’s instructions. Alternatively, parents and the school can agree to postpone testing until it can be done safely in person.


Waivers

  • School districts cannot require parents to sign waivers before the district delivers online services to students with disabilities.


IEP teams and meetings

  • IEP teams must include the parent(s), at least one regular education teacher if the child is participating in the regular education environment, at least one special education teacher, a representative of the district, someone who can interpret the results of any evaluations, other individuals who have knowledge or expertise of the child (at the discretion of the family), and the child when appropriate. Participants may be excused if the parent and school agree in writing that their area of expertise is not being discussed at the meeting. If the IEP meeting involves modifications to or discussions about a participant’s area of expertise, they may be excused if the parent and school agree in writing, and if the participant submits written input into the development of the IEP prior to the meeting.
     
  • Parents and the IEP team may agree to make an IEP amendment without meeting as long as the written amendment does not take the place of the annual IEP meeting.


Extended School Year (ESY)

  • Although ESY services are typically provided during the summer months, schools should consider providing ESY to children during the normal school year, school breaks, or vacations, if the services were not able to be delivered during the summer of 2020.

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