MDE-OSE Issues Special Education Return-to-School Guidance

On August 26, 2020, MDE’s Office of Special Education (MDE-OSE) released return-to-school guidance (Guidance), which is available here:

This long-awaited Guidance addresses “special education priority topics” for fall 2020 and contains FAQs addressing obligations under the Individuals with Disabilities Education Act (IDEA) and the Michigan Administrative Rules for Special Education (MARSE).

General Questions

  1. What priority topics did MDE-OSE identify in the Guidance?

MDE-OSE identified six priority topics: (1) free appropriate public education (FAPE), (2) contingency learning plans (CLPs), (3) parent counseling and train­ing, (4) informal assessments, (5) impact of COVID-19 on students, and (6) recovery services.

Schools must ensure that students with disabilities receive a FAPE regardless of whether the students are educated in-person or remotely. A new IEP meeting or an IEP amendment may be required to ensure that a student receives a FAPE.

IEP teams also should consider whether there is a need to include parent counseling and training in a stu­dent’s IEP. Parent counseling and training is a related service under the IDEA and is designed to help par­ents/guardians acquire skills to support the implemen­tation of the student’s IEP. For example, a parent/guardian whose student is receiving instruction virtually may need training on technology used by the student.

Consistent with the Return to School Roadmap and recent return-to-school legislation, schools also may need to complete formal and informal assessments to determine the current instructional levels of each stu­dent with a disability. IEP teams will then need to con­sider this data, along with data collected before the spring school closure, to determine student needs, including any new or emerging needs.

Finally, schools are encouraged to gather data from a variety of sources to determine whether the spring school closure adversely affected students with disabil­ities to a greater degree than their general education peers and, if so, whether the students should receive re­covery services. Recovery services are optional, supplemental services provided to students during the school day. For more information about recovery ser­vices, see MDE-OSE’s July 7, 2020 guidance, which is summarized in our July 30, 2020 School Law Notes and available here:

  1. Has the U.S. Department of Education (USDOE) issued any return-to-school guidance for students with disabilities?

No. USDOE does not intend to provide schools flexibility or issue any waivers of IDEA requirements, including the obligation to provide a FAPE. A school’s failure to comply with IDEA’s procedural and substantive requirements may result in potential liability and a need to provide compensatory education.

Contingency Learning Plans

  1. What is a CLP?

The term is not defined in the Guidance, IDEA, or MARSE. Generally, a CLP is a written plan that ad­dresses circumstances when a student may need to re­ceive special education and related services virtually or in an alternate format due to COVID-19. The CLP de­scribes the circumstances that would trigger the use of a CLP and the services that will be provided during its implementation. The CLP is developed by a student’s IEP team, including the parent/guardian, ideally before it is needed.

  1. Is a CLP required for every student?

No. MDE-OSE recommends (but does not require) that schools develop a CLP for every student with an IEP to address potential interruption to in-person spe­cial education programs and services due to COVID-19. Because neither IDEA nor MARSE require CLPs, they are optional.

  1. MDE-OSE guidance states that CLPs should be developed when the “full offer of FAPE cannot be pro­vided.” The USDOE refused to waive IDEA’s FAPE require­ment during the COVID-19 pandemic. Please explain.

Schools must ensure that, to the greatest extent possible, students with disabilities receive a FAPE, in­cluding the special education and related services iden­tified in the student’s IEP. Therefore, schools that develop a CLP must keep the FAPE standard in mind. A CLP that does not provide a student with a FAPE likely violates the IDEA.

  1. If our school developed a CLP for a student last spring, do we need to develop another CLP for the 2020-21 school year?

It depends. Consistent with MDE-OSE’s spring guidance, many schools developed CLPs outside of the IEP process (i.e., without parent/guardian input, an IEP meeting, IEP amendment, or prior written notice). Un­der MDE-OSE’s return-to-school guidance, a CLP must now be developed by a student’s IEP team, which in­cludes parents/guardians. Despite MDE-OSE’s spring guidance, Thrun Law Firm repeatedly advised schools that CLPs had to be completed through either the IEP or IEP amendment process. If your school developed CLPs in the spring without convening an IEP team meeting or completing a proper IEP amendment, the school will need to convene an IEP team meeting or do an IEP amendment with parent/guardian agreement to ad­dress the use of a CLP this fall. Relatedly, if a student’s spring CLP did not provide the student a FAPE or is expired, a new CLP may be necessary.

  1. When should a school consider developing a CLP for a student?

As noted above, MDE-OSE recommends CLPs for all students with disabilities. It is Thrun Law Firm’s posi­tion, however, that for many students a CLP will not be necessary. The IEP is the school’s offer of FAPE that drives special education programs and services. A CLP may not be required for a student if the IEP Team de­velops an IEP for the student that is location-neutral (i.e., it can be implemented in the same or similar man­ner during in-person and remote instruction) and re­flects the programs and services to be provided to the student within the context of the school’s COVID-19 Preparedness and Response Plan and its Extended COVID-19 Learning Plan.

Schools may need to consider developing a CLP if a student is not able to participate in planned in-person instruction due to COVID-19 and the student’s IEP is not location-neutral (i.e., it cannot be implemented in the same or similar manner during in-person and re­mote instruction). In those instances, a CLP should be developed to address how the student will receive a FAPE remotely and what will trigger remote program­ming (e.g., a COVID-19 building closure or a student-specific quarantine order).

If a student will be receiving remote instruction, either because all students are receiving remote in­struction or because the student’s parent/guardian se­lected the remote instruction option, the student’s IEP should be written to ensure that the student receives FAPE remotely.

  1. How should a CLP be developed and documented?

The decision to develop a CLP for a student must be made either at an IEP Team meeting or through an IEP amendment without a meeting (with parent/guardian agreement). The CLP should be referenced in the sup­plemental aids/services section of the IEP with language similar to this:

The IEP Team determined that the Student requires a Contingency Learning Plan to ad­dress potential COVID-19 related interruptions to in-person instruction. The Contingency Learning Plan is attached to this IEP and may be amended by the District, in consultation with the Student’s parent/guardian, outside of the IEP process.

A copy of the CLP and any subsequent modifications should be provided to the par­ent/guardian in writing and should include a procedural safeguards notice.

Thrun Law Firm developed a template COVID-19 Individual Contingency Learning Plan with instructions for its use for clients. Please contact one of the firm’s special education attorneys if you would like to purchase a copy.

IEP Team Meetings and Evaluations

  1. May schools hold in-person IEP Team meetings this school year?

In-person IEP Team meetings are permissible for schools operating under phases four through six of the Return to School Roadmap if all Roadmap and local health department-required safety protocols are imple­mented, such as the use of face coverings, social dis­tancing, and capacity limits. Schools in phases one through three are not permitted to hold in-person IEP Team meetings, but meetings may be held using alter­native means such as videoconferences and conference calls with parent/guardian agreement. If a par­ent/guardian is not able or willing to participate in a virtual IEP Team meeting, the school may need to delay the meeting and should document the reason for the delay.

  1. How does a school conduct initial evaluations and re-evaluations during COVID-19?

As noted above, there have been no waivers of IDEA requirements during COVID-19. Schools are still expected to complete evaluations within the MARSE 30-school day timeline.

MDE-OSE’s guidance recommends that schools be proactive and prioritize evaluations, starting with those evaluations that the school delayed or did not complete in the spring due to the mandated school clo­sure and stay-at-home orders. The next priority are those evaluations that have been requested due to the COVID-19 school closure’s impact on a student. Lastly, three-year reevaluations should be completed.

Schools may need to be creative in how they approach their special education evaluations this year. Many test publishers of popular special education as­sessments now provide remote administration guide­lines for evaluators to minimize the need for in-person evaluations. Evaluations that take place in-person may require the use of additional personal protective equip­ment when conducting the evaluation. Classroom observations may need to be conducted virtually and parent/guardian interviews may need to be completed over the phone. For some evaluations, the school may be able to rely on existing data to determine eligibility and special education programming needs.

For three-year reevaluations, schools may also want to consider whether the school has sufficient data to continue a student’s eligibility for special education without further evaluations, with the understanding that it may be prudent to do additional testing when in-person instruction resumes rather than wait until the student’s next reevaluation.

  1. What if a school cannot meet the 30 school day timeline for initial evaluations?

MARSE requires schools to complete evaluations within 30 school days unless: (1) the student’s par­ent/guardian repeatedly fails or refuses to produce the student for the evaluation, or (2) the student enrolls in a school in another local educational agency after the evaluation has begun. If a school cannot meet the 30 school day timeline, the school may ask the par­ent/guardian to agree to an extension of time. Any agreement to extend the timeline must be in writing and “include a specific extension of time measured in school days.”

For a student who is not yet eligible for special education and the initial eligibility determination can­not be made due to a COVID-19 related delay, MDE-OSE recommends that the school develop a CLP for the stu­dent based on the suspected disability and the “needs that resulted in the request for an evaluation.”

Thrun Law Firm will continue to advise clients about the latest COVID-19 special education develop­ments. Please contact your Thrun special education attorney if you have questions.