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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.





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