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When reading my blog, please know that I am not an attorney and cannot provide legal advice.  

Connecticut to extend transition services until age 22!

posted Jun 23, 2020, 9:28 AM by Diane Willcutts

If your child is 21, do not accept a regular diploma before considering whether additional transition services are needed!

A recent federal court decision--A.R. v. Connecticut State Board of Education--determined that Connecticut's current law limiting special education services to the year in which the student turns 21 is in violation of IDEA.  So now Connecticut districts are obligated to provide transition services to qualifying students through the day before their 22nd birthday.

A.R. was a class action case and applies to individuals who were over 21 and under 22 within two years before the action was filed or who, but for turning 21, would otherwise qualify or would have qualified for a [free appropriate public education] until age 22 because they have not or had not yet earned a regular high school diploma.  The judge awarded individuals in the class compensatory education, the form of which is to be determined.

So what does this mean?  Going forward, students who are 21 and younger who have not yet received a regular diploma may be eligible to extend special education services until age 22.  And students who are older than age 22--as long as they turned 22 within two years before the time the case was filed-- may be eligible for compensatory education to make up for the services that they missed.  If questions, please contact Disability Rights Connecticut, who represented the plaintiffs, or an experienced special education attorney in Connecticut.  

Note:  right after the decision came out, there was a concern that the State of Connecticut might try to appeal, but it is clear from state guidance that the state is going to let the decision stand.  Congratulations to A.R. and class members!


State issues guidance regarding Extended School Year services (ESY) for summer programming

posted May 22, 2020, 7:40 AM by Diane Willcutts   [ updated May 22, 2020, 9:04 AM ]

To cut to the chase, the state guidance does not tell us whether ESY will consist of in-person services or distance learning or some combination.  We just don't know.

So what does it tell us?  Not much more than we already knew, except. . . 

The Connecticut State Department of Education (CSDE) now has come up with a preferred name for services that will be needed to remediate skills lost due to school closure--"recovery services."  

 "Recovery services" in the CSDE guidance seems to mean almost the same thing as "compensatory services" described in the federal guidance, with one exception.  

Connecticut's "recovery services" seem to be deemed to remediate LOST skills only.  I.e., to bring students back to where they were when school buildings were closed.  This would make sense only if students were to simply maintain skills during this time.  However, since federal guidance says that FAPE (Free and Appropriate Public Education) is still in effect during school building closure, this means the child should have had the opportunity to make appropriate progress during this time.  So when considering compensatory/recovery services, we should be considering what appropriate progress the student should have been able to make--if it were not for school building closure--and then plan recovery services accordingly.  

This isn't about blaming the school district.  I know of a couple districts that offered every virtual service they possibly could during school closure--providing it to the greatest extent possible--but those children were simply not able to benefit from those services, maybe because they truly required in-person instruction and computer learning was not something they could access.  For those children, distance learning simply is not appropriate, even though it may have been all the district could safely offer.  The need for compensatory/recovery services should be based on the child's actual progress with the services the child was actually able to access, not based on whether the district offered the most that they could.  More information about compensatory services is in my blog, here.

It is odd that the CSDE guidance admonishes districts to consider ESY services apart from recovery services.   The guidance seems to be saying that considerations for ESY need to occur now, whereas recovery services will be determined later.  If that is what is meant, I don't agree with this.  If we already know that the student is going to require recovery services, why not have the PPT make decisions about starting those services now if that's possible?  

Whenever families are ready to discuss recovery services, I encourage families to bring this up at their children's PPTs, making requests for these services as soon as they can be safely implemented.  If the district refuses to discuss this at a PPT, perhaps citing CSDE guidance, I recommend asking that this refusal go on the Prior Written Notice page of the IEP (Page 3), so there is a paper trail that the district refused, in the event the family later needs to file for a due process hearing or a complaint.  Note that most families never need to do this, but it's always good to have matter-of-fact documentation of any important areas of agreement and disagreement.  "If it's not in writing, it never happened."

This CSDE guidance reiterates previous guidance that distance learning plans ("continued educational opportunity plans") are developed apart from the IEP process, which is a violation of IDEA and inconsistent with federal guidance.  There is no provision in IDEA that permits districts to develop educational programming for students with disabilities, distance or otherwise, apart from the PPT.  More detailed analysis of why the CSDE is wrong is here.

So here's hoping the next round of CSDE guidance includes more clarity and, dare I hope, consistency with state and federal law.  Bottom line:  including parents in decision-making results in better educational programs.  So let's do this right!




Compensatory services related to COVID-19. . . don't assume this is automatic.

posted May 2, 2020, 7:21 AM by Diane Willcutts   [ updated May 22, 2020, 7:02 AM ]

Disclaimer:  I am not an attorney, and this is not legal advice.

Many families believe that, because districts aren't currently providing all the services in the child's IEP, the district will automatically agree to make up those services once school buildings re-open.  This isn't necessarily true.  

In fact, some school board attorneys are telling districts that, as long as they offer some sort of distance learning and document those efforts to provide a Free and Appropriate Public Education (FAPE), the district should not have to provide compensatory services to most children with disabilities.  

What????  

Part of the problem is that some school board attorneys and district administrators erroneously believe that compensatory services are provided only when the district was to blame for not providing FAPE.  And oh by the way, there is a pandemic, and that's certainly a big contributing factor to why many districts aren't providing FAPE right now.  In many cases, the lack of FAPE right now is truly not the district's' fault.

However, the idea that compensatory services are owed only when a district is to blame is a faulty analysis.  The U.S. Department of Education's 3/21/2020 guidance states:

Where, due to the global pandemic and resulting closures of schools, there has been an inevitable delay in providing services – or even making decisions about how to provide services - IEP teams. . . must make an individualized determination whether and to what extent compensatory services may be needed when schools resume normal operations.

According to the guidance, the standard for providing or not providing compensatory services isn't "did the district attempt to offer FAPE as best they could, given the pandemic?"  Instead, the standard is "did the services offered during the pandemic actually provide FAPE for the child?"  Because it's possible that there might simply have been an inevitable delay in providing FAPE that might trigger the need for compensatory services.

The guidance assumes that some students simply aren't going to be able to benefit from distance learning.  Some students require in-person engagement, hand-over-hand support, assistance with using manipulatives that school staff simply cannot offer virtually.  Some transition-focused IEPs are designed to enable students to gain or generalize skills at job sites or in the community, which also isn't possible to do virtually.  The guidance assumes that the IEP might not be able to be implemented during school closure--that there may be an inevitable delay--and that we may need to provide those services once the school buildings re-open.  In short:  compensatory services are not necessarily about blaming the adults; compensatory services are about meeting the needs of the child.

School board attorneys are advising district staff to document offers of FAPE1 and document that parents agreed to the services   So it's critical for parents to document when the services are not appropriate, although understanding that it may not be possible for the district to provide appropriate services right now. 

This parent documentation can ensure clear communication with the school district and could trigger the IEP team to brainstorm alternative solutions that might be more likely to provide FAPE during school closure.  And if the district doesn't provide FAPE for whatever reason and later resists providing needed compensatory services, that parent documentation may be critical evidence in a due process hearing to resolve the disagreement.

So what might parents write if they believe the district is not providing FAPE in a situation where the district is doing all they can right now?

Dear special education teacher and special education director:

I appreciate that the district is attempting to provide distance learning to my child while school buildings are closed.  Unfortunately, this is not working.  Since my child does not benefit from distance learning and requires in-person services, I understand that providing an appropriate program for my child is simply not possible right now and that there may be an inevitable delay due to the pandemic.  I'm open to a discussion about what compensatory services may be needed once the school buildings re-open.  I hope you are doing well!

Sincerely, 

Parent

And of course, other situations may require different documentation, but this is just to give you an idea. 

When writing your emails and/or letters to the district, keep in mind that special-ed-ese is very black-and-white.  A program is appropriate, or it's not.  Writing in special-ed-ese can be hard for parents, as they may worry about hurting staff's feelings by being blunt.  But keep in mind that, if you say to the teacher, "you are doing a great job," that translates in special-ed-ese to "the program is appropriate."  If you truly meant to say that the program is appropriate, then it's fine to give blanket compliments.  But if you are feeling like the program isn't working, you need to say what you mean more precisely, "Although the program is not appropriate, I appreciate your efforts."

Good luck, and stay safe!

_____________________________________________

1Note that current Connecticut guidance says that "continued educational opportunities" or distance learning plans are not part of the IEP.  And if there is no IEP, by definition, there is no offer of FAPE.  As a result of this, many Connecticut school districts may end up being liable for providing compensatory education to all students with disabilities, simply because they didn't offer FAPE.  Districts in some other states are complying with IDEA by documenting continued educational opportunities in IEPs and working in conjunction with parents to make decisions.  So it is possible!  My analysis of the state's 4/24/2020 guidance is here.  



New state guidance on PPTs, evaluations, and more - what works and doesn't work for children

posted Apr 30, 2020, 12:22 PM by Diane Willcutts   [ updated May 5, 2020, 7:34 AM ]

On April 24, the Bureau of Special Education issued updated guidance regarding PPTs and evaluations.  This is a step in the right direction, but there is some information that is inconsistent with IDEA and federal guidance and needs to be changed.

1.  Do districts have to convene any PPTs?

Yes.  

The 4/24/2020 state guidance says that districts should not adopt a policy or practice resulting in a cancellation of all PPTs while the school buildings are closed.  This is a big deal, as many parents had been hearing exactly that from their districts, who were saying that there would be no PPTs or 504 meetings convened until school buildings re-open.  

Unfortunately, the guidance then goes on for a page and a half with questions and criteria that imply that the need and ability to convene state-sanctioned PPTs may be rare.  Of course, March through June is typically busy season for PPTs with lots of essential meetings, as parents and school teams work together to consider summer services and to plan for next year.  And many districts have successfully been convening virtual PPTs.  In short, the need and ability for districts to convene virtual PPTs is not rare!  

The only question that is relevant to whether or not we should convene a PPT is:  do we need to consider developing and/or making changes to an IEP?  If yes, we need to have a PPT--unless the district and parents agree to revise the IEP through a written amendment without a PPT.

Fortunately, despite the possible confusion, some districts that had previously refused all PPTs are now starting to convene virtual PPTs.  So we'll see what happens next.

2.  Do districts need to help families be prepared to participate meaningfully in PPTs?

Yes.  The guidance says that, if the district has documents that they intend to discuss at the PPT, these should be provided to parents at least three days prior to the meeting.  Wonderful!  Just to be safe, parents should send an email to their child's case manager (usually the special education teacher) requesting that these documents be emailed to them.  The documents might include draft goals and objectives, evaluations, progress reports, etc.

3.  My child has an annual review date coming up.  Is the district required to convene a PPT by that date?

The feds say yes.  The state says no.

According to the actual IDEA statute, the actual state regulations, and every single piece of federal guidance on this issue, including guidance related to disasters like Hurricane Harvey, Hurricane Sandy, Hurricane Maria, the H1N1 influenza outbreak, and the current pandemic. . . yes, yes, yes, annual reviews are required to occur within the usual timeframe, and participants have the flexibility to meet via telephone or videoconference.

In stark contrast, the Bureau has now issued two sets of guidance that tell districts it's OK to violate the law and to miss annual review deadlines and that there will be no consequences for this from the state.  

Some administrators have claimed that the reason it might be necessary to extend annual review deadlines is that parents might not make themselves available for PPTs while the school buildings are closed.  However, I did a survey of over 200 Connecticut parents, and 96% said that they would be willing to participate in a virtual PPT if the district requested it.  In addition, over the past several weeks, many families reported that they themselves had requested virtual annual reviews and other PPTs, and approximately 50% of those families said that the district refused them, often citing guidance from the state.

4.  What about my child's continuous/distance learning plan?  Isn't distance learning a change in placement?  And doesn't that require a PPT?

The state says no, asserting that "educational opportunities" during distance learning are not required to be documented as part of the PPT process.  However, the only meeting format that requires districts to include parents as equal decision-makers is a PPT, so doing these plans apart from the PPT is a big deal.  Per the state guidance, the distance learning plan does not have to be part of the IEP, and school districts are permitted to unilaterally make decisions about the child’s programming during the months of school closure.  This is completely counter to the spirit and letter of IDEA, which requires that essential programming be included in the IEP and be developed by a team that includes the parents.

The U.S. Department of Education (USDE) has repeatedly said yes, the plan during school closure is part of the IEP, which means a PPT is needed to make changes to it.  Or alternatively, parents and districts can agree to do a written amendment to the IEP without convening a PPT.  There is nothing in IDEA or federal guidance that contemplates the IEP being suspended during prolonged school closure at a time when educational opportunities are being provided to all students.  The IEP, which must be developed by a team that includes the parents, is still in effect.  The USDE's  3/12/2020 guidance states: 

"If an LEA (Local Education Agency or school district) continues to provide educational opportunities to the general student population during a school closure. . . SEAs (State Education Agencies), LEAs, and schools must ensure that, to the greatest extent possible, each student with a disability can be provided the special education and related services identified in the student’s IEP developed under IDEA, or a plan developed under Section 504."

The 2017 guidance from the USDE on implementing IDEA during disasters also emphasizes that the IEP team is making decisions during the school closure.  See the answer to Question C-3:

If a school continues to provide instruction to the general school population during an extended closure due to a disaster, but is not able to provide services to a student with a disability in accordance with the student’s IEP, the student’s IEP Team determines which services can be provided to appropriately meet the student’s needs. The IEP Team may meet by teleconference or other means to determine if some, or all, of the identified services can be provided through alternate or additional methods. 

It is critical that parents be included in making decisions about distance learning plans--which are supposed to be part of the IEP--as parents are experts on their children and can help develop better programs.  Not to mention that, while school buildings are closed, parents are often the ones implementing most of the instruction that is part of the plan.

In addition, the U.S. Department of Education has repeatedly said that, if all students are receiving educational opportunities, districts are also responsible for providing FAPE to students with disabilities.   E.g., from the 3/12/2020 guidance:

If an LEA continues to provide educational opportunities to the general student population during a school closure, the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE.

However, FAPE is dependent on an IEP.  Without an IEP being in effect, there is no offer of FAPE.  And in the event that Connecticut districts follow the state guidance, they could be opening themselves up to having to provide compensatory education to all students with disabilities--because there were no IEPs in effect and therefore no FAPE was provided during school closure.

***note that the rest of the answer to this question is similar to what I have written in another blog post, so if it sounds familiar, it is - feel free to skip to the next question***

Some administrators have expressed reluctance to have distance learning plans be part of the IEP, reporting their concerns that this might become the child's "stay put" placement in the event of a due process hearing.  And to be fair, most parents do not want homebound, distance learning to be "stay put" either.

So how does the USDE address this concern?  In their 3/12/2020 guidance, the USDE proposed having a "contingency plan" as part of the IEP to address distance learning during school closure.  It says:

Question A-5:  May an IEP Team consider a distance learning plan in a child’s IEP as a contingency plan in the event of a COVID-19 outbreak that requires the school’s closure?

Yes. IEP teams may, but are not required to, include distance learning plans in a child’s IEP that could be triggered and implemented during a selective closure due to a COVID-19 outbreak. Such contingent provisions may include the provision of special education and related services at an alternate location or the provision of online or virtual instruction, instructional telephone calls, and other curriculum-based instructional activities, and may identify which special education and related services, if any, could be provided at the child’s home.

Creating a contingency plan before a COVID-19 outbreak occurs gives the child’s service providers and the child’s parents an opportunity to reach agreement as to what circumstances would trigger the use of the child’s distance learning plan and the services that would be provided during the dismissal.

In this case, since the contingency distance learning plan is to be in place only during school closure, it is not “stay put” once the school buildings re-open.   Since IDEA permits the IEP to be revised through a written amendment, provided the parties agree, this change to the IEP might not require a PPT.   Alternatively, the district would need to convene a virtual PPT to consider school team and parent proposals for the distance learning plan.  

It should be noted that IDEA has been implemented successfully in all previous disasters, and the above answer is the same as in USDE's 2009 Q&A related to the H1N1 influenza outbreak.  See Question A-4.

My opinion:  Under no circumstances, should the distance learning plan be unilaterally determined by the school team, apart from the IEP, with the parents having no decision-making ability and no recourse if the program is inappropriate.  

5.  What about PPTs related to initial evaluations?

If the initial evaluations have already been completed, the state strongly recommends convening a PPT to review the results, determine eligibility, and develop an IEP.

The state also permits PPTs to review a referral for special education and recommends considering existing data, including information provided by the parent, to determine if a disability is suspected and/or whether there is enough available information to determine the student's eligibility and develop an IEP if needed.  

If the PPT determines that further, in-person evaluation is needed to determine eligibility that cannot be conducted during school closure, the state recommend districts and parents to come to mutual agreement regarding a timeline for completing the initial evaluation.  

And what does the USDE say about evaluations during a disaster?  From the 3/17/2020 guidance:

If an evaluation of a student with a disability requires a face-to-face meeting or observation (while school buildings are closed), the evaluation would need to be delayed until school reopens. Evaluations and reevaluations that do not require face-to-face assessments or observations may take place while schools are closed, if the parent consents. 

It is helpful that the state guidance further recommends that, if the eligibility determination cannot yet be made while the school buildings are closed, the parent and school district consider additional temporary supports to assist the student in accessing and benefiting from the continued educational opportunities (i.e., distance learning).

6.  Didn't Congress order the Secretary of Education to consider recommending waivers to IDEA that might be consistent with some of the state guidance with which you disagree?

Yes, Secretary DeVos considered waivers.  And in her report, she declined to recommend any waivers for annual reviews or waivers to enable districts to develop distance learning plans apart from the IEP.  Instead, she decided to uphold these key parts of IDEA, despite strong pressure to do otherwise by the Council of Special Education Administrators (CASE), the National Association of State Directors of Special Education (NASDSE), the AASA (the national association of superintendents), and many of their members.  For more information about the requested waivers--that were declined--see here.  

It is important to note that the 4/24/2020 state guidance was issued a few days prior to Secretary DeVos's report, and so it is possible that the state will distribute new guidance that will (I hope) conform to what the law requires and what is truly in the best interest of our children.

7.  What about Extended School Year services (ESY)--or summer programming?

The state said that the criteria for PPT determinations regarding ESY has not changed.  It is confusing that the state explicitly recommends that the ESY process should not be utilized to determine whether or to what extent compensatory services may be needed due to COVID-19-related school closure.  

My feeling is that, if we already know that the child is missing services (often through no fault of the district, the child, or the family) and is going to need compensatory services related to COVID-19 closures, we can still consider that need at the PPT and could even implement some of those services during the summer--whether or not the child requires ESY for other reasons.

Yes, this can all be confusing, so if you have questions, it's fine to call me at (860) 992-5874 or email Diane@educationadvocacyllc.com.





CARES Act report from the Secretary of Education is here!

posted Apr 27, 2020, 4:00 PM by Diane Willcutts   [ updated Apr 27, 2020, 5:19 PM ]

Insert huge sigh of relief.

The report includes almost no IDEA waivers.  

The one waiver that is directly relevant to children is entirely reasonable and helpful.  There is a waiver to extend the timeline for any needed in-person evaluations of toddlers transitioning from Part C (Birth to Three) to Part B (special education provided by school districts).  And the child is eligible to continue with Part C services past age 3 if needed, so there is no gap in programming.

So. . . no waiver to a Free and Appropriate Public Education.  No waiver for annual reviews.  No waiver for due process hearing timelines beyond what was already in the law.

This is a child-focused report, and I am enormously grateful to everyone who worked so hard to let our government know how much this matters.

The report is here.


IDEA under attack because of provision in CARES Act

posted Apr 4, 2020, 3:16 PM by Diane Willcutts   [ updated Apr 19, 2020, 10:26 AM ]

The recently passed CARES Act (an economic stimulus act in response to the coronavirus pandemic) includes a hidden provision that says that the U.S. Secretary of Education, Betsy DeVos, must issue a report within 30 days of the signing of the Act, making recommendations for waivers to IDEA (the Individuals with Disabilities Education Act), Section 504, etc. that could be enacted by law to provide states with "limited flexibility" to meet the needs of students with disabilities.  The Act was signed on March 27, 2020, so the clock is ticking. . .

Unfortunately, "limited flexibility" is undefined, and two powerful national organizations of special education administrators just sent a letter to Secretary DeVos that makes recommendations for temporary waivers to IDEA that are unnecessary and that would be disastrous for children with disabilities.  

In their letter, the Council of Administrators of Special Education (CASE) and the National Association of State Directors of Special Education (NASDSE) assert that they are "fierce supporters" of IDEA, an important law that protects children with disabilities.  However, IDEA emphasizes the critical role of parents, who are experts on their children, in developing appropriate educational programs.  In stark contrast, the CASE/NASDSE letter argues for "flexibilities" that would potentially eliminate parent participation in the IDEA process for a period of months—possibly 7 months or longer in Connecticut--and create unnecessary delays in providing appropriate services to children.  

So what does the CASE/NASDSE letter say?

 CASE and NASDSE are proposing to pause IDEA timelines as of the date of school building closure and to not restart them until the school buildings reopen.  And to then get another 45 SCHOOL DAYS (yes, more than two months) to meet the "deadline."  So which deadlines do they want waived?

  • Those for annual review PPTs (Planning and Placement Teams--what IEP meetings are called in Connecticut)
  • PPTs to transition a child from Part C to Part B (the transition from early intervention services provided by Birth to Three to special education services provided by the public schools), 
  • PPTs to review initial and triennial evaluations
  • State complaints
  • Due process hearings

For states like Connecticut where school buildings are closed now and are likely to remain closed until next fall, this translates to special education administrators potentially being able to limit/eliminate parent participation and to make unilateral decisions about a child's program for the next 7 months.

But aren’t health and safety the priority right now?  IDEA encourages PPTs to convene by telephone or video conference when needed.  Virtual PPTs present no risk to health or safety.  

But shouldn’t we be focusing on the provision of services rather than convening IEP meetings?  We need to do both.  School districts are always expected to do both.  IEP meetings are to ensure meaningful parent participation.  The pandemic has not changed that.  And certainly, with meaningful input of parents, who are experts on their children, services are more likely to be appropriate.

But don’t you understand, there is a pandemic?  For most of us, the main impact of the pandemic is that we are working in a different location.  Most of us are healthy.  We are not asking first responders or grocery store workers to participate in our IEP meetings.  Most Connecticut school staff are being paid to work right now.  And the U.S. Department of Education has issued several guidance documents related to waivers and flexibilities in response to disasters.  In those documents, two things are clear.  Timelines for annual reviews and most other timelines may not be postponed.  And parent participation may not be waived.  See here, here, and here

Another concern is that, if we do not convene PPTs now, we will not realistically be able to catch up in a reasonable period of time once school buildings re-open   March through June is the busiest time for PPTs, with many of the back-to-back meetings focusing on transitioning the child to the next grade, which brings new demands and requires revisions to IEPs to ensure appropriate programming is in place prior to the start of the school year.  Connecticut parents have let me know they are panicking because, even without any waivers from the federal government, many districts are already refusing to convene virtual PPTs and are saying that these meetings will not occur until the school buildings re-open.  Which could be in the fall.

Children who are turning three who require special education are supposed to receive services by the start of their third birthdays.  Again, two powerful organizations of special education administrators are advocating to permit school districts to unnecessarily refuse to do any planning for these students now but instead to extend timelines for over two months into the school year.

Due process hearings are needed to resolve disagreements between families and school teams regarding critical aspects of a child's program.  These are being done virtually in some states.  Delaying them is unnecessary.

The bottom line is that some school districts ARE convening virtual PPTs now, some are participating in virtual mediation, some are participating in virtual due process hearings. . . so we know it’s possible, despite the pandemic.  And there are school teams who are working with families in a meaningful way to provide appropriate programs during the school closures.  We can do this!

So what else is a concern?

The CASE/NASDSE letter also asks for "procedural flexibilities," recommending that “distance/continual learning plans” implemented during school closures not be part of the IEP, which means this would not require a PPT.  PPTs include parents as equal decision-makers, so doing this apart from the PPT is significant.  If the CASE/NASDSE proposal were passed through legislation, school districts  would be permitted to unilaterally make decisions about the child’s programming during the months of school closure.  Per CASE/NASDSE, parents would be “consulted” but would not be equal decision-makers with IDEA protections.  

CASE/NASDSE states their intention is to ensure that the IEP that was in place prior to school closure is the IEP that is in place once school buildings re-open.  This would be important in order to ensure that, in the event of a due process hearing, "stay put" is not homebound, distance learning.  (I suspect most families do not want "stay put" to be that either.)  However, the result of this proposal could be that districts will assert there is no need to obtain parent agreement about programming or to convene virtual PPTs at any time while the school buildings are closed.  

So what does the U.S. Department of Education (USDE) say?  In their 3/12/2020 guidance, the USDE proposed having a "contingency plan" as part of the IEP to address distance learning during school closure.  It says:

Question A-5:  May an IEP Team consider a distance learning plan in a child’s IEP as a contingency plan in the event of a COVID-19 outbreak that requires the school’s closure?

Yes. IEP teams may, but are not required to, include distance learning plans in a child’s IEP that could be triggered and implemented during a selective closure due to a COVID-19 outbreak. Such contingent provisions may include the provision of special education and related services at an alternate location or the provision of online or virtual instruction, instructional telephone calls, and other curriculum-based instructional activities, and may identify which special education and related services, if any, could be provided at the child’s home.

Creating a contingency plan before a COVID-19 outbreak occurs gives the child’s service providers and the child’s parents an opportunity to reach agreement as to what circumstances would trigger the use of the child’s distance learning plan and the services that would be provided during the dismissal.

In this case, since the contingency distance learning plan was to be in place only during school closure, it was not “stay put” once the school buildings re-opened.  This USDE guidance recommends going beyond the CASE/NASDSE proposal that districts merely “consult” with parents and instead recommends giving the child’s service providers and parents the opportunity to make decisions together.  Since IDEA permits the IEP to be revised through a written amendment, provided the parties agree, this change to the IEP might not require a PPT.   Alternatively, the district would need to convene a virtual PPT to consider school team and parent proposals for the distance learning plan.  

IDEA has been implemented successfully in previous disasters, and the above answer is the same as in USDE's 2009 Q&A related to the H1N1 influenza outbreak.  See Question A-4.

My opinion:  Under no circumstances, should the distance learning plan be unilaterally determined by the school team, with the parents having no decision-making ability and no recourse if the program is inappropriate.

What about the CASE/NASDSE request for "financial flexibility" regarding Maintenance of Effort?


This CANNOT happen.  

 

IDEA explicitly requires a local educational agency (LEA or school district) to expend from local and state funds at least as much in the current year as it expended in the preceding year, except as provided in a very limited number of circumstances.  This provision is known as the maintenance of effort (MOE) requirement, which school districts must follow In order to be eligible to receive any IDEA funds.  The MOE requirement is to ensure that local districts aren’t constantly reducing their spending on special education and to ensure that federal IDEA funds are not simply being used to supplant local spending.   

CASE/NASDE is proposing that MOE be waived for the 2019-2020 school year--which would mean that school districts could spend less--dramatically less--on special education this year and going forward.

Waiving MOE for this year means that school districts can lower special education funding this year and would then get to base next year’s education funding on the lower funding level.  This provides an incentive for districts to not commit sufficient money to meet the needs of students with disabilities now and is an incentive to continue with the lower spending levels going forward.

Districts need to allocate resources to special education as much now as they ever have.  We need to ensure students have access to virtual learning, which doesn’t apply to all students but applies to most.  Laying off teachers and others during the pandemic is counter to what we should be doing.  We need to maintain contracts with private special education schools and contractors to ensure continuity of services when school buildings re-open.  

In short, there is no reason for the Maintenance of Effort requirements in IDEA to be “flexible” now, as the immediate and long-term impacts would be devastating to students with disabilities.  

So what about the positives?  I am aware of many special education administrators who have been leaping tall buildings to continue virtual IEP meetings, to include parents in decision-making as equal members of their child's team, and to provide services to every child to the maximum extent possible.  Heroes exist!

But the CASE/NASDE proposals?  The result could very well be no IEP meetings or hearings during school closures and beyond--which is becoming the norm in many Connecticut districts--and potentially nothing for months after school buildings re-open.  In short, no parent participation required.

So what are the next steps?  Please write to and call your Senators and your Representative in Congress to let them know that most of the proposed temporary IDEA waivers are unnecessary, would be damaging to your child, and should not be included in any future legislation.  In case it's helpful, a sample letter I wrote to one of my Senators is here.  Please adapt as you wish!

My recommendations:  

  1. No additional "flexibilities," temporary or otherwise, are needed for most situations, as IDEA already includes flexibility.  E.g., IEP teams already have the opportunity to convene meetings virtually and can even revise the IEP through written amendment without a meeting when all parties agree.  Right now, districts across the country are convening virtual IEP meetings and are engaging in virtual mediations and even due process hearings.  It can all be done.

The exception?  If there is an initial evaluation or triennial that has not yet been completed and that requires in-person assessment, that timeline could be paused from the time the school buildings were closed and should restart immediately once face-to-face contact can safely resume and/or when the school buildings re-open.  Why pause the timeline at all? Because some protocols for standardized testing may require face-to-face assessment to ensure validity.  Check with the test publisher to find out what they are recommending.  

In addition, if the above exception applies to a child transitioning from Part C to Part B, the evaluation timeline could be paused, and Part C services could continue past the child's third birthday through the PPT to determine eligibility for Part B.  (Thank you to Andy Feinstein for that great suggestion!)

2.  Any temporary "distance/continuous learning plan" must be incorporated into the IEP as a contingency plan, remaining in effect while the school buildings are closed and not to be "stay put" once school buildings re-open.  Most contingency plans could be done through written amendment to the IEP--with parent and school district agreement.  Alternatively, a virtual IEP meeting could be convened. 

3.  There must be no "flexibility" with Maintenance of Effort requirements.  We need to continue contracts with school staff, private special education schools, and contractors to ensure continuity of services once schools re-open.


Consistent with IDEA and USDE guidance, parent involvement in the development of their child's individualized plan is not optional, and it is critical that children not lose IDEA protections while school buildings are closed.


The Council of Parent Attorneys and Advocates wrote their own letter to Secretary Devos, recommending no IDEA waivers, temporary or otherwise, here.


ACTION ALERT 2 - So what have you done for me lately?

posted Mar 20, 2020, 8:36 AM by Diane Willcutts   [ updated Mar 20, 2020, 2:08 PM ]

On the plus side, yesterday's effort worked!  The reason the awful "let's suspend IDEA for the next year or more" wasn't included in yesterday's stimulus bill is due to all the efforts of parents and disability rights organizations to virtually storm Congress!  

HOWEVER, this bill requires that the Secretary of Education provide a report with recommendations for possible waivers in regards to IDEA (special education law) AND also Section 504 (civil rights law protecting students with disabilities).  I.e., the IDEA and 504 waivers aren't part of this bill.  But having the Secretary of Education write a report recommending waivers is a step in the process to remove protections for our kids.  So. . . 

Please keep the pressure on Congress!  

Yesterday's action alert that includes contact information for members of Congress is here.

Today's action alert from the Council of Parent Attorneys and Advocates (COPAA) is here.

A sample letter to Congress is at the end of this post.

From Lou Geigerman (advocate in Texas--posted on Facebook 16 hours ago on 3/19/2020)
The provision that we were concerned about never was inserted in the bill that passed yesterday. However, a follow up stimulus bill that is being introduced tomorrow by Senator Alexander in HEN 20255 has the following language and needless to say it is very concerning to all of us and we need to contact our US SENATORS TO REMOVE ANY LANGUAGE RELATING TO WAIVERS FOR IDEA or other education policy:

6 SEC. 4511. NATIONAL EMERGENCY EDUCATIONAL WAIVERS.

18 (3) IDEA REPORT.—Not later than 30 days
19 after the date of enactment of this Act, the Sec-
20 retary of Education shall prepare and submit a re-
21 port to the Committee on Health, Education, Labor,
22 and Pensions and the Committee on Appropriations
23 of the Senate, and the Committee on Education and
24 Labor and the Committee on Appropriations of the
25 House of Representatives, with recommendations on

231

HEN20255 S.L.C.

5XT 2N J6H
1 any additional waivers the Secretary believes are

2 necessary to be enacted into law under the Individ-
3 uals with Disabilities Education Act (20 U.S.C.

4 1401 et seq.) and the Rehabilitation Act of 1973 (29
5 U.S.C. 701 et seq.) to provide limited flexibility to
6 States and local educational agencies to meet the
7 unique needs of students with disabilities during the
8 emergency involving Federal primary responsibility

9 determined to exist by the President under the sec-
10 tion 501(b) of the Robert T. Stafford Disaster Relief

11 and Emergency Assistance Act (42 U.S.C. 5191(b))
12 with respect to the Coronavirus Disease 2019
13 (COVID-19).


Diane Willcutts

(street address)

West Hartford, CT  06119

(860) 992-5874

DLK@toast.net

www.educationadvocacyllc.com

 

March 20, 2020

 

Senator Chris Murphy

U.S. Senate

(202) 224-9750 (fax)

 

Re:  COVID-19 Bill - Today's Attack on IDEA and Section 504

 

Dear Senator Murphy:

 

As I wrote yesterday, I am an advocate for Connecticut children with disabilities.  I am horrified to hear that there are continued efforts in Congress to ultimately permit the Secretary of Education to waive provisions of IDEA and now Section 504 of the Rehabilitation Act of 1973.  These attacks on protections for students with disabilities need to stop!

 

I urge you to reject any provision that would lead to waiver authority to the Secretary of Education regarding the Individuals with Disabilities Education Act (IDEA) or Section 504. 

  

I hope you will help schools by providing states with additional funding that can be used to provide teachers and school leaders and families with the tools they need to connect to teach and support students.

 

Please support the students with disabilities that rely upon the IDEA, Section 504, and the ADA to have equitable access to an education.  If I can be of any help, please let me know.

 

Sincerely,

 

Diane Willcutts


ACTION ALERT - Attack on IDEA may end up in COVID-19 stimulus bill

posted Mar 19, 2020, 11:08 AM by Diane Willcutts   [ updated Mar 19, 2020, 12:24 PM ]

Reportedly, U.S. Senator Lamar Alexander (R-TN) is seeking to waive the provisions of the Individuals with Disabilities Act (IDEA) for a year or longer.  This essentially means that districts would not be responsible for educating students with disabilities during that time.  Please contact your senators and representatives!  

Contact information for members of Congress is here.

The Council of Parent Attorneys and Advocates (COPAA) has issued an action alert with sample language and contact information, here.

The letter I sent to my representatives is below.  Feel free to steal whatever you would like!  

____________________________________________________________________________________________


Diane Willcutts

(home address)

West Hartford, CT  06119

(860) 992-5874

DLK@toast.net

www.educationadvocacyllc.com

 

March 19, 2020

 

Senator Chris Murphy

U.S. Senate

(202) 224-9750 (fax)

 

Re:  COVID-19 Bill - Attack on the Individuals with Disabilities Education Act (IDEA)

 

Dear Senator Murphy:

 

I am an advocate for Connecticut children with disabilities.  I am very concerned to hear that there are efforts from Senator Lamar Alexander to waive provisions of IDEA for a period of time, perhaps a year or longer.  The idea that the U.S. would possibly sanction losing a year of education for our most vulnerable children is frightening, and I hope you will help.  

 

While the COVID-19 outbreak has placed a tremendous and unprecedented strain on schools and districts, it is imperative that we work together to find solutions that allow children to receive equitable access to an education and the services that support them without undoing all of their civil and educational rights.  I urge you to reject any provision that would provide waiver authority to the Secretary of Education regarding the Individuals with Disabilities Education Act (IDEA). 

 

Over 7 million children rely on IDEA to receive special education supports and services.  And in fact, some districts, even this early on, are being very creative and are finding ways to meet children's needs, including providing tele-therapies and convening virtual IEP meetings to plan for their programs.  

 

To make sure all students have access to the internet, some districts are setting up locations to provide devices to all children to take home, and we are working to find ways for all families to have internet access.  THAT should be our focus.  If anything, this crisis is giving us the opportunity to find more equitable ways to provide education.  The answer isn't "let's not have any expectations for our schools to educate children."  The answer is "let's creatively trouble-shoot how we can meet our students' needs.”  And that includes all of our students.  

 

Right now, many of us are at home and are healthy.  We're not first responders.  We don't work in grocery stores.  Why wouldn't we take some time off from worrying to try to creatively trouble-shoot what we can do for all kids?  Without sanctioning widespread discrimination against children with disabilities.  

 

I hope you will help schools by providing states with additional funding that can be used to provide teachers and school leaders and families with the tools they need to connect to teach and support students. Schools can also be supported with funding to provide extended school year to students and other compensatory services.

 

Please support the students with disabilities and their families that rely upon the IDEA to have equitable access to an education.

 

Sincerely,


Diane Willcutts



School is closed because of COVID-19 (coronavirus). So now what?

posted Mar 14, 2020, 2:33 PM by Diane Willcutts   [ updated Mar 22, 2020, 5:12 PM ]

 INFORMATION ADDED TODAY IS IN RED.  

The Governor has ordered that Connecticut public schools end classes by the end of the day Monday, March 16, 2020, and remain closed through at least March 31, 2020.  This will likely be longer. 

What does this mean for students who receive special education services?

So far, we don't know much for sure.  We are still waiting for more guidance from the state.  A letter from SEEK (Special Education Equity for Kids) that makes recommendations to the Connecticut Commissioner of Education is here.  SEEK is Connecticut's first organization of parents, providers, advocates and attorneys, fighting for excellent education for the 70,000 Connecticut students with disabilities.

1.  What do we know for sure?  

Connecticut students are not going to be required to attend school in July.  

The state has waived the requirement that schools be in session for 180 days this school year and has said that districts can close at the usual time.  Districts are being encouraged to set up some form of distance learning.  The time/means of this will likely vary from district to district.  The executive order from the Governor is here.  And of course, the big challenge will be meeting the needs of students with disabilities who cannot benefit from online learning, not to mention all students who do not currently have the technology to engage in computer-based learning.  More to come!

2.  Does the school district need to provide special education services to my child while school is closed?

Welcome to the wild west.

Some districts are telling families yes.  Some districts are telling families no.

The state seems to say yes.

The federal government says "it depends."

I say, "Absolutely, as long as the child can safely benefit from this."  And if we truly can't provide appropriate services while the school building is closed, then we need to make up those services at a later time (e.g., through compensatory education).

So from the state:   "The federal law related to special education and students with disabilities does not specifically address a situation in which school would be closed for an extended period due to exceptional circumstances, such as a pandemic influenza. School districts, however, may not discriminate on the basis of disability when providing educational services, and remain responsible for the free appropriate public education (FAPE) for students."  (Bold added.)  This guidance is here.  That's about the extent of the direction, though; and I expect the state to issue more detailed guidance soon.

On the other hand, the U.S. Department of Education's Office of Special Education Programs (OSEP) issued guidance that says that, "if (a school district) closes its schools to slow or stop the spread of COVID-19 and does not provide any educational services to the general student population, then (the school district) would not be required to provide services to students with disabilities during the same time period."  OSEP's Q&A is here.    

HOWEVER, the Council of Parent Attorneys and Advocates (COPAA), which works on behalf of children with disabilities, disagrees and indicates that not providing IEP services would be a violation of IDEA.  Specifically, . . . "the Secretary (of Education) does not have the authority to grant waivers to FAPE under IDEA.  COPAA has grave concern with the (federal) Department of Education's proposition that students with disabilities are not entitled to services during a school closure.  COPAA believes the obligation remains.  COPAA's analysis is here.

OSEP at least acknowledges that, "If (a school district) continues to provide educational opportunities to the general student population during a school closure, the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE (a Free and Appropriate Public Education, as provided in the IEP).  The (state department of education, the school district) and schools must ensure that, to the greatest extent possible, each student with a disability can be provided the special education and related services identified in the student's IEP, or a plan developed under Section 504."

OSEP also acknowledges that compensatory education may need to be provided to make up for missed instruction.  

3.  What if my child's school district does not provide special education services or provides insufficient services?  Can I obtain services privately and then ask for reimbursement?

This would make sense, but as I said, it's the wild west, so who knows how this will play out.  To keep the door open for reimbursement, many attorneys have recommended that parents send a "10-day letter" to the district, which states that the existing programming is inappropriate, that parents/guardians are going to obtain appropriate private programming for their child, and that they will request reimbursement from the district.  A 10-day letter must be sent to the district at least 10 BUSINESS DAYS prior to the private services starting.  Note that I am not an attorney, so if you require legal advice, please contact an attorney.  If you need a list of attorneys with whom to communicate, just email me, and I will provide that.

4.  So what about PPTs (IEP meetings) and 504 meetings that were scheduled to occur during school closures?  Are these cancelled?

Most districts have asked to reschedule PPTs and 504 meetings that are to occur in the next two weeks and say they are planning to reschedule once the school buildings re-open, whenever that occurs.  I am asking my families to instead consider requesting that the districts convene these meetings even while the school building is closed--by conference call and/or online web service.  

Why?  

Because realistically, schools may be closed well beyond March 31.  And either way, there may not be enough time to reschedule all the missed PPTs and 504 meetings that need to occur prior to the end of the school year.

Yes, we can meet in the summer, but. . . most of these PPTs truly need to occur prior to the end of the school year.  PPTs are required to consider whether a child needs extended school year services (also known as ESY--special education services that occur during the summer), which requires that we make decisions about ESY before summer starts.  Many students need revisions to their IEPs and 504 plans prior to transition to the next grade.  And many students are due for annual review PPTs this time of year--which are meetings that IDEA requires occur no later than a year from the previous annual review.   

Note that the U.S. Department of Education's Office of Special Education Programs (OSEP) issued guidance related to another disaster, Hurricane Sandy, relative to meeting IDEA's timelines, indicating that we still do need to convene annual reviews within the time frame, even if virtually.  

I understand that many people are saying, "Shouldn't these procedural requirements be waived?  Where are your priorities?"  My priority is making sure that children with disabilities are not forgotten during this crisis.  IDEA was passed at a time when school districts were saying, "We don't know how to meet the needs of children with disabilities, so we're not going to even try."  IDEA requires that we figure it out.  And we are creative, capable people.  We can do this.

Fortunately, there are services like Zoom, Skype, Free Conference Call, FaceTime, etc. that can host meetings while school buildings are closed.  This isn't even close to a perfect solution because some families do not have access to web technology or even reliable phone service.  However, it would be enormously helpful to convene meetings however we can for however many children we can in the interim.  And if I hear about some more creative solutions, I will definitely pass them on!

5.  My child attends an outplacement (private special education school) that is still open.  But my district is closed.  Can my child still go to school?  

I'm not sure how many private schools are still open, but this definitely applied last week.  When the private school was open, some school districts said yes, the child could go to school, and the district still provided transportation.  Some school districts said yes but refused to provide transportation.  And some districts said, no way, your child is not allowed to attend, even if you agree to transport.  Needless to say, I applaud the first group.  Do not get me started on the other two.  To my knowledge, the state has not yet weighed in on this, and I hope they will, helping us to keep the focus on the needs of the child.

6.  What resources exist to help my children while they are at home?
  • For the next two weeks, many Connecticut districts have sent home packets and are providing online practice to "maintain skills."  Many families have been told that this work is optional and will not be graded.  Which is helpful, as much of this work is not truly accessible to children with disabilities or to families who do not have internet service, etc.  My understanding is that many districts are using this initial two-week period to figure out what kind of instruction they might offer if the school closures go on beyond two weeks.
  • Today, the Governor said that there will be a free online education module available to all students, but there were no details provided regarding when this would happen, what this would include, how it would be made accessible to children with disabilities, or how we would ensure that all students have internet access.  More coming as we learn more.
  • For those who do have internet access, many online education companies are providing free subscriptions due to the coronavirus outbreak.  Two comprehensive lists are here and here.  
    • For those looking for a curated list of resources, Amy Langerman, an attorney and special education consultant, has more ideas on her facebook page, here.  Search "education ideas" on her page.
    • Literacy How provides a list of websites that will help the new, accidentally homeschooling family.
    • The Connecticut State Department of Education just published a list of resources for instruction, including those that are subject-specific.
  • Wilson Language Services has attempted to provide guidance regarding continuing Wilson instruction during school closures, here.
  • NESCA (a neuropsychology group in Massachusetts) wrote an article on making the most of COVID-19 school closures, here.
  • Many experts suggest having a schedule for children to structure their day, and one example is below.  This image is also attached to the end of this post, in case people want to print it separately. 

Sample schedule for COVID-19 school closures

  • Many Connecticut districts continue to offer free breakfasts and lunches to their students through "grab and go" sites.  Check the individual school district web sites for information about locations.  Families can also call 211 to get information about where to obtain food.  
Some school "grab & go" resources that have showed up in my in-box are below (and please email me more if you have them):



Confused?  Overwhelmed?  You are not alone.  I'll post more as I learn more.  Stay safe!



Connecticut hearing decisions 2016-present - who went, who won, who decided?

posted Aug 17, 2019, 1:57 PM by Diane Willcutts   [ updated Aug 17, 2019, 2:08 PM ]

Most families of children with disabilities will never have to file for a due process hearing.  And in the cases where parents do have to file, approximately 95% of those cases settle without going to a full-blown hearing.   So what happens with that other 5%?

As part of my summer project, I reviewed all the hearing decisions from 2016 through the present and organized them in a table, listing the district, prevailing party, hearing officer, parent attorney, school board attorney, etc.  

It's important to note that parents were represented by attorneys only 42% of the time.  School boards were represented by (taxpayer-funded) attorneys 100% of the time.  When parents were represented by attorneys, they prevailed 42% of the time at the hearing level.  When parents went to a hearing pro se (without an attorney), they prevailed only 4% of the time.

The table I prepared--sorted by school district--is below and can be downloaded.

1-10 of 41