Whats Next How to Manage IEPs 504 plans

What’s Next? How to Manage IEPs, 504 plans, FAPE and Distance Learning COVID-19 Update

Introductions For those new to Education Rights Counsel, and all our more familiar friends – WELCOME! Our Mission: We advocate for educational equity, amplifying the voices of our most vulnerable children by removing legal barriers so all children stay in school and thrive. Today your co-hosts are: Lauren Micek Vargas, Executive Director Elizabeth Eynon-Kokrda, Managing Attorney

A bit of Housekeeping: ) We are recording this session – we plan to make it available later on Education Rights Counsel’s website. Everyone should be muted. We have approximately 50 people on the call, so throughout the session, you will be able to post your questions in the Chat Box. Lauren will be tracking them as we go, and we will provide our best answers during the Q & A that will follow our overview of where we are and what we see coming. We are lawyers but this session is not legal advice. We are giving you information from a variety of sources and explaining our understanding of that information. We will answer questions but cannot give you individual legal advice.

What We Are Going To Cover: v Where we are today v NOTE: The impact of COVID on education changes daily v Federal & Nebraska Guidance on Special Education during COVID pandemic v Our FAQ/Q & A based on what we are seeing so far v Outlook for summer and fall v General quick review of ESY and Compensatory Services under IDEA and Rule 51 v YOUR Q & A v Wrap-Up

Let’s go: Where are we today? v v Federal Guidance (1): March 12 fact sheet v Basically said if you are providing education to anyone you need to provide it to everyone. v Sadly, many districts read this to mean they could “make resources available” and not provide services to students with disabilities. v ERC worked with the Department of Education to reverse course Federal Guidance (2): March 21 supplemental fact sheet v v Said schools had a “serious misunderstanding” and clarified that compliance with IDEA, Section 504 and the ADA should not prevent any school from offering educational programming through distance instruction. Many districts across the country asked for potential waivers to their civil rights obligations. v Betsy De. Vos will report to Congress in a few days. We urge your opposition. v Nebraska’s Commissioner is trying to teach other states that we can do this – we are imperfect, we will get better, but we should not be waiving civil rights.

Nebraska’s Position & Requirements Local school systems should be providing “continuity of learning” in an “alternate learning environment. ” v All students across all abilities, must have equitable access to continued learning outside of the “traditional” classroom. Educational opportunities must include the provision of special education “as directed per IEPs. ” Districts should consider: accessible distance technology; small groups of students with disabilities; access to nondisabled peers; instructional phone calls; other content-based activities. School staff and staff from all impacted agencies (e. g. Level III Placements) should be included in planning efforts.

Nebraska re Assessment and Enrollment On April 20, Governor Ricketts issued Executive Order 20 -20 This order is a limited waiver for just certain assessment requirements. On April 20, NDE released a “Data, Research, & Evaluation” FAQ Public schools must still enroll students (even though buildings are physically closed). Districts must still report student-level membership and enrollment data. Student moving during the last quarter, within a district, should be enrolled at the new school. Students moving during the last quarter to a new district should be enrolled in the new district at the new school. Schools must be tracking contacts and hours for progress monitoring on a student’s IEP.

FAQ 1: Must FAPE still be provided? YES: To the greatest extent possible, students should be provided the special education and related services identified in the student’s individualized education program (IEP). BUT - FAPE still has to be consistent with the need to protect health and safety. Where technology itself imposes a barrier to access or where educational materials are not available in an accessible format, educators must meet their legal obligations by providing children with disabilities equally effective alternate access to the curriculum or services provided to other students.

FAQ 2: What if a student hasn’t yet been verified? Child Find still applies Most Assessments can be done virtually Parents can agree to waive certain assessments to assure the process continues. MDT reports should be sent to the parent prior to the virtual MDT meeting IFSPs function in the same manner.

FAQ 3: What about my IEP resources? Resources should be made available at home: Schools should be providing students with assistive technology tools as part of continuity of learning Websites must be free of barriers that make accessing content and materials difficult.

FAQ 4: Do IEPs have to be amended? NO: Guidance provided by OSEP during the March 13, 2020 Joint Webinar on COVID- 19 with OSEP, Council of Administrators of Special Education, Council of Chief State School Officers, National Association of State Directors of Special Education indicated that if online or virtual learning is part of school building closure, the school district would not be required to amend students’ IEPs as online or virtual learning would be considered an alternate mode of instructional delivery.

FAQ 4 continued: Any changes NEEDED to provide FAPE can be agreed upon by either developing a written document to amend or simply by changing the service delivery from in-person to a distance-learning delivery model. Any changes should be documented in a PWN. The PWN and the changes should describe specifically what distance learning looks like, the provision of direct and related services, what accommodations are necessary to ensure your student can make progress toward IEP goals.

FAQ 5: What do I do if I am asked to amend the IEP? Remember that this is about the individual. Simply because the district has cut curriculum time 50%, for example, doesn’t mean that your child needs 50% less services and support to access that curriculum. The goal is ALWAYS to ensure that your student receives educational services closest to the manners prescribed within the IEP. Any amendment to the IEP must provide an individualized basis for changes that relate specifically to what your child needs to access whatever the district is providing to the general education population.

FAQ 6: What if I’ve already agreed to an amended IEP and I don’t know if it is correct? First, track what is happening. 6 Questions to Ask Yourself: 1. Does my child have access to the appropriate resources required to engage in the alternative delivery model, such as cell phones, computers and internet or other acceptable connectivity? 2. Has the district worked with me to understand to what extent possible any particular service, such as occupational therapy, physical therapy and speech language therapy, can be provided in an alternative delivery format? 3. Am I getting instructional aides or assistive technology support services ? Is my child being provided differentiated instruction and one-on-one support if needed? 4. Has the district provided me with training to enable me to use whatever online system is being used and to understand the school’s expectations of me? 6. Am I providing services and support that the district normally provides to support my child, and if so, am I tracking what I am providing? Districts are going to be documenting what they are doing – you need to as well for purposes of compensatory services. 6. Is there a structure and communication routine that has been set by the district and is it working with my child?

FAQ 6, continued: 4. Has the district provided me with training to enable me to use whatever online system is being used and to understand the school’s expectations of me? 5. Am I providing services and support that the district normally provides to support my child, and if so, am I tracking what I am providing? Districts are going to be documenting what they are doing – you need to as well for purposes of compensatory services. 6. Is there a structure and communication routine that has been set by the district and is it working with my child? If it isn’t working, reach out and ask for another IEP meeting because what is happening is not providing FAPE.

FAQ 7: What about my related services? Related services on your current IEP should be provided during distance learning. Some related services (e. g. , OT, PT, and speech therapy) can be provided through teletherapy; Some students may not be able to benefit from these services virtually – it’s a case- by-case decision. In Nebraska, in-person nursing-level services are being provided by some districts, but there is no mandate to do so.

FAQ 8: What about students enrolled in non-public schools or in Level III schools? Non-Public: School districts must ensure that, to the greatest extent possible, each parentally-placed nonpublic school student can be provided the special education and related services identified in the student’s IEP on an equitable basis as compared to other students with disabilities enrolled in the public school with an IEP. Level III: Once distance learning instruction begins for all students in districts, this also includes students on IEPs in all instructional settings, including those students in Level 3 programs.

FAQ 9: Can timelines be extended? What if the school says we cannot update an IEP? IEP teams must review IEPs annually. There is no exception to this annual requirement. IEP teams can meet virtually. Any required IEP team members that are unable to attend may be excused by written consent of the parent. There is no exception for transitioning a child from an IFSP to an IEP either.

FAQ 10: The district won’t enroll my student? ? In Nebraska, the statute is very clear that districts must enroll students and there has been no waiver of this by the Governor. The Nebraska Department of Education put out a statement on April 20, 2020 making this clear (it can be found on the front page of Education Rights Counsel’s website – www. educationrightscounsel. org) and at https: //www. education. ne. gov/publichealth/faq/

FAQ 11: What about Due Process hearings? Due Process (complaints and hearings) is still in place. Timelines should be continued to be met BUT can be extended by hearing officers. Due Process complaints are likely to increase as parents determine what has, or has not, actually happened concerning services, supports, accommodations and goals. They are likely to be related to loss of FAPE and failure to provide appropriate compensatory services.

FAQ 12: Do we have resources for the emotional trauma being suffered by children? Social and emotional learning should be a part of connecting students together, before any academics are offered each day. If it isn’t happening, ask for a virtual check-in for your child, either one-to-one, or through a virtual community circle. Consider requesting that certain practices be embedded in the contact you are having with staff. Look for your own resources – for example, National Child Traumatic Stress Network has information on how children’s reactions to trauma can interfere with learning, which may now need to be addressed in your child’s IEP. Insist on predictable routines/relationship rituals Watch for spikes in anxiety, and understand that mental health effects of dealing with the pandemic may linger after the crisis has passed. The very impact of COVID may need to be addressed in your IEPs.

Quick review of Summer School, ESY, and Compensatory Services SUMMER SCHOOL There are no rules/requirements for summer school Extended School Year (ESY) is DIFFERENT than summer school It applies during periods when school is not in session. ESY must be in place to provide FAPE. ESY cannot be unilaterally limited in type, amount or duration. The IEP team determines if services are necessary. The purpose is to prevent or slow severe skill regression caused by an interruption of special education services (e. g. , not to enhance present levels). We look at skill regression and a child’s limited capacity for recoupment. CHECK what your IEP says now about ESY. Losses of social, behavioral, academic, communication, or self-sufficiency skills during interruptions in instruction should be considered. ESY can be delivered in various ways.

Quick Review, cont. COMPENSATORY EDUCTION is not summer school or ESY: When a district does not give your child the special education services they are supposed to, you may receive compensatory education. The purpose to help your child catch up for when the school did not provide FAPE for a sustained period of time. Compensatory education isn’t in IDEA, it comes from case law. However, both US DOE and NDE have said that every single child is going to have to be assessed by the IEP team to determine if compensatory education is appropriate due to COVID. This is one of the reasons it is not appropriate to agree, through an amended IEP, that your child doesn’t NEED what the district would otherwise have provided. The goal is to provide enough to get your student back to where she would have been had she received the services that the IEP says she needed for FAPE. The key will be what services your child did not receive during the closure and what is needed to make up for any skills that may have been lost because those services were not provided.

Outlook for Summer & Fall ERC will continue to work with NDE Our big concerns are: Shortening the school year on top of the deprivations already experienced will exacerbate the education gap. Summer ought be a time for implementing more time for our more fragile students, through ESY and the commencement of compensatory services It also ought be a time for all of us (districts, families, advocates, the state) to be thinking about new ways to better serve students regardless of setting – we must learn from this how unprepared we were, and how prepared we must become, especially in terms of using technology We need to be a unified strong voice consistently pushing for more equity at the foundation of laws, regulation, and delivery of services We need accountability At the close of the official school year ERC will be sending open-ended survey questions that mirror what the state is asking of schools, in terms of successes, failures, and next steps. YOUR VOICES ARE IMPORTANT.

Outlook, cont. Individually, what should parents and guardians be doing for their children right now? Fight any waivers to states for IDEA implementation – demand that special education remain intact and that stimulus money be directed toward preventing disruption of services Figure out how technology, new digital platforms, and low-tech options are, or not, supporting your child and why Begin planning, with the district, for ESY and Compensatory Ed. BOTH can be provided over the summer and in some cases we already know that no specific service called for in the IEP was provided.

TIME FOR “LIVE” Q & A REMINDER: THIS IS NOT LEGAL ADVICE

Wrap-Up Learning during the pandemic is tough Going back to school is going to be even tougher: we need to be planning for that now. Difficulty in adapting and diversifying instruction will result in an even wider range of learning levels, because learning opportunities have been vastly different for students in the same classroom. We can expect that most if not all students will have fallen behind grade level. There is going to be trauma for all students, coping with extended social isolation, the loss of loved ones, increased poverty, economic instability. We can expect that the most vulnerable students will suffer the most – disabled students are less likely to receive high-quality distance learning and more likely to experience trauma. We need to start NOW to find solutions to what we can anticipate.

THANK YOU! ERC is working on your behalf – Please reach out to us. We have many resources posted on our website. www. educationrightscounsel. org