Distance learning presents unique and difficult challenges, especially for students with disabilities. School officials continue to struggle with how to provide effective special education programming while still meeting their legal requirements under the Individuals with Disabilities Education Act and Michigan law.
The Michigan Department of Education Office of Special Education (MDE-OSE) recently released its Guidance for Compliance with the Individuals with Disabilities Education Act and the Michigan Administrative Rules for Special Education During the COVID-19 Pandemic, which encourages schools to adopt Contingency Learning Plans (CLPs) for students with IEPs. That document is available here:
Thrun Law Firm cautions school officials that MDE-OSE’s guidance may create a false sense of security for schools that develop CLPs outside the traditional IEP process. Because MDE-OSE does not have the authority to waive or modify federal law, the guidance may expose schools to potential claims for compensatory education and attorneys’ fees if they implement a CLP instead of the student’s IEP.
Areas of Concern with CLPs
MDE-OSE’s guidance does not clearly identify who should create the CLP. The guidance initially indicates that IEP Teams should develop CLPs, which, at a minimum, would require an IEP Team meeting that includes a special education teacher or provider, a regular education teacher, the parent/guardian, and a district representative. Given the current exigent circumstances and the need for immediate determinations on service delivery, we do not believe such an approach is feasible.
The guidance later suggests that schools may unilaterally draft CLPs, without convening a meeting and without providing notice to parents. Because the CLP would necessarily deviate from the student’s IEP, we believe such an approach likely violates the IDEA.
The IDEA requires that all eligible students with disabilities be provided a free appropriate public education (FAPE). The definition of a FAPE, in part, requires the provision of special education and related services in accordance with a student’s IEP. Because a CLP is not an IEP, a school may violate the IDEA if it provides supports and services pursuant to the CLP instead of the student’s IEP.
MDE-OSE further opines that schools are not required to provide prior written notice to parents/guardians when the school implements a CLP. Prior written notice, however, is required every time a school proposes or refuses to change a student’s identification, evaluation, placement, or provision of FAPE. Because a CLP likely constitutes a change of a student’s provision of FAPE, we believe prior written notice is required.
As explained in our April 6, 2020 E-Blast, to the extent educational services to a student with a disability will deviate from the student’s IEP, the IEP should be amended, as appropriate, to reflect the services the student will receive. An IEP may be amended without a meeting if the student’s parent/guardian agrees. That amendment may adopt a CLP or otherwise identify the programs and services the student will receive during the time schools are closed for in-person instruction. By proceeding in this manner, school officials may provide special education programs and services in a manner that complies with the student’s IEP (through the amendment) instead of providing services through a stand-alone CLP that is inconsistent with the student’s IEP.
School officials have discretion in how they amend a student’s IEP, so long as the student’s parents/guardians agree to the amendment. An IEP may be amended electronically, so long as the document reflects: (1) what modifications are being made to the IEP, and (2) that the parents have agreed to those modifications. School officials should provide parents prior written notice of the IEP amendment. A meeting is not required to amend an IEP if there is parental agreement, nor is there any particular form that must be completed to document the IEP amendment.
In an effort assist our clients during this time, we have created a “COVID-19 Individual Learning Plan and IEP Amendment.” The form provides a simplified IEP amendment process that is user-friendly and legally compliant. As always, parent consent to amend the IEP outside of a meeting is required. If your school would like to purchase this form, please contact your Thrun Law Firm Special Education attorney.