COVID-19 Special Education

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Guidance on Providing Services to Children with Disabilities During the Coronavirus Outbreak

During the Covid-19 National Emergency, the North Dakota Department of  Public Instruction (NDDPI) recognizes that administrators and educators are striving to address the challenge of moving to a system of learning where students are not allowed in the school building because of health and safety concerns.  It is recognized that educators and parents are working to provide a sense of normality for students during these unprecedented times.  The North Dakota Department of Public Instruction wants to support schools and families to creatively make good faith efforts by including what is an appropriate and reasonable means to educate students through distance learning. 

It is important to emphasize that federal disability law, including IDEA and 504, allows for flexibility in determining how to meet the individual needs of students with disabilities. The determination of how FAPE is to be provided may need to be addressed on an individual basis.  Although federal law requires distance instruction to be accessible to students with disabilities, it does not mandate specific methodologies.

In accordance with the North Dakota Department of Public Instruction interim guidance and the Governor’s Executive Order, the intent is to educate and graduate the students of North Dakota through the end of the academic year while maintaining the health and safety of all, including students with disabilities. There may be circumstances where an IEP/504 team needs to consider once school resumes under normal circumstances, on an individual basis, whether there is a need for compensatory education.

1. Distance Learning: all students are provided an opportunity to learn from a distance.

a) Under the IDEA, every student with an IEP is entitled to receive a free appropriate public education (FAPE), which includes specially designed instruction based on a student’s unique needs designed to ensure the student makes progress in the general curriculum and toward meeting IEP goals. 34 C.F.R. §§300.39 and 300.320.

b) Districts must consider the technology needs of each student with an IEP in order to provide access to regular and special education services. If additional technology is needed for a student to receive FAPE, it must be provided by the school, at no charge to the student. 34 C.F.R. §300.105. Submission and approval of state approved plans will outline the full continuation of services to be considered as replacing instructional time.

c) Upon return to normal school operations, each IEP team for students with an IEP must review the provision of FAPE during the period of distance learning, to determine whether compensatory services are warranted in any service area, including instruction and/or any individual therapies. (OSERS March 2020).

2. Attendance: during distance learning, attendance will continue to be monitored as outlined in the district’s approved plan. If,

a) individual students with an IEP are absent for 10 consecutive school days or less, the provision of services to the extent available is not considered a change of placement;
 
b) the absence is likely to be more than 10 consecutive school days, the IEP team must consider change of placement decisions on an individual basis;
 
c) the parent chooses to keep a student with an IEP home for precautionary measures, the district is not obligated to provide homebound services or consider the need for compensatory education. This decision must be based on the individual needs of the child and not on perceptions of the child’s needs based on generalizations regarding his or her disability;
 
d) the parent requests the district not provide services to a home bound student due to health and safety concerns, the student is considered absent and the district is not required to make up services;
 
e) the district determines, for health and safety reasons, that staff will not provide home bound services during the public health emergency, the district must hold an IEP meeting and determine what, and if any, services must be made up.

3. Evaluation and IEP Timelines:
a) For students ages 3-21, the 60-day timeline for initial evaluation continues to be in effect.  Reasons for not meeting this timeline must be clearly documented in a Prior Written Notice. If, because of exceptional circumstances, the 60-calendar day timeline will not be met, the IEP team must clearly document the exceptional circumstance, the timeline for completing the evaluation, and present parents with their procedural safeguards if they are disputing the rationale. The Department of Education recently stated in its March 21 Supplemental Factsheet, “Once the evaluation is completed, IDEA does not contain an explicit timeline for making the eligibility determination…” In ND the eligibility determination is made at the Integrated Written Assessment meeting to review evaluation results, which is due within 60 calendar days.

b) During exceptional circumstances, districts may consider a virtual IEP team meeting. However, the determination must be made on a case-by-case basis, must include the parent and other required IEP team members, and cannot be the only meeting format considered. This decision must be clearly documented in a Prior Written Notice. Parents must be presented with their procedural safeguards.

All educational decisions for student with IEPs must be made on an individual basis and consistent with the Individuals with Disabilities Education Act (IDEA) and the North Dakota Department of Public Instruction policy.

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