On August 7, 2020, ODE issued important guidance on special education for the 2020-2021 school year. The four guidance documents (Students with Disabilities, Telehealth Guidance, Additional Considerations for Special Education, and Students with Disabilities Compendium of Resources) outline many significant changes and must be followed as your district develops its plan for the start of the school year. Two of the documents – Students with Disabilities and Telehealth Guidance – were subsequently revised on August 14, 2020.
Two of the guidance documents (Students with Disabilities and Additional Considerations for Special Education) provide a list of questions school administrators should ask as they are addressing certain special education issues. These questions should be comprehensively reviewed with your special education staff as they encounter these scenarios.
At the outset, ODE reiterated that schools should continue to make a good-faith effort to provide specialized services to students with disabilities, and must consider the exact nature of the services provided on an individualized basis. Yet ODE also confirmed that, while balancing the need to protect the health and safety of students who receive special education services, parents, and staff, districts must provide a FAPE.
ODE provided more specific guidance on the following areas:
ETR and IEP Meetings:
Regarding whether to conduct ETR and IEP meetings in-person or remotely, ODE stated that “the health, safety and wellness of students, parents and staff must be considered and drive decisions.” More specifically, ODE stated that:
initial ETRs are to be completed within the typical 60-day timeline;
for IEP or ETR meetings held remotely, participation and required signatures can be documented by email attachment, standard mail, scanned signature, photograph of the signature or any other electronic means; and
for IEP or ETR meetings held in-person, they must be “held in a healthy and safe manner according to Ohio Department of Health and State of Ohio guidelines.”
IEP Revisions and Least Restrictive Environment:
When the guidance was initially issued on August 7, 2020, ODE indicated that if a student’s least restrictive environment (LRE) has changed due to remote learning, or a blend of remote and in-person learning, IEP teams must ensure this change is accurately reflected in the student’s IEP. ODE has since walked back that directive in its most recent guidance that was re-issued late last week. ODE clarified that a student’s LRE is determined by the IEP team and must be based on each student’s individual needs rather than based on a change in placement caused by a district-wide educational plan. ODE advises districts to write into each student’s IEP the provisions that would be in place for each possible educational scenario (in-person learning, virtual learning, or hybrid learning) that are individual for each student’s needs. Yet there is no longer a directive to amend the LRE for each student’s IEP if remote learning, or partial remote learning, is going to be implemented
New "Recovery Services", Compensatory Education, and ESY:
ODE recognized that the typical framework for determining whether compensatory education services should be provided does not fit the closure based on COVID-19. Importantly, ODE noted that districts “did not fail to provide a FAPE because the district stopped implementing a student’s IEP; instead, the entire state moved to remote education without choice.”
Taking a cue from other states, ODE is now using the term “recovery services” to reflect the need of students to recover from any educational gaps in learning caused by the unexpected school-building closures. If a student with a disability shows less than expected skills acquisition upon re-entry to school after the closure period, recovery services in the form of additional services and supports would be provided to resume learning based on each student’s current levels of performance. ODE clarifies that recovery services are not about a district’s intentional failure to provide services but are instead a systemic approach to help students recover from unavoidable pandemic-related service delivery interruptions. Each IEP team must make an individual determination of whether a student needs recovery services, and, if so, what those services should be. Recovery services can be provided throughout the school year and do not need to be completed during the first few weeks of the school year. Additionally and importantly, ODE noted that, unlike compensatory education, recovery services do not need to replace missed services during the closure period minute for minute. Recovery services are about helping students recover from educational gaps, and are tailored for that more general purpose.
ODE also states that when recovery services are provided, it should be noted in the “Other Information” section of the IEP and clarify that such services are being provided due to the coronavirus-related ordered school building closure period. ODE also suggests stating that recovery services are not extended school year (ESY) services.
ODE also notes that there are situations where compensatory education could be warranted. Those situations would be when the district failed to provide the services of the student’s IEP during the closure (such as refusing to provide services or failing to provide special education services when regular education students received continued instruction). ODE also reiterated when ESY services should be offered (to prevent or slow severe skill regression during extended periods when school is not in session) and effectively stated that ESY should not be used for skill recovery based on the school closures.
Specially Designed Instruction:
Regarding specially designed instruction, ODE reiterated that even when schools are providing virtual or partially virtual instruction, specially designed instruction must continue to be provided as written in the student’s IEPs. The IEP should address the specialized instructional needs of each student in the various possible educational scenarios (in-person learning, virtual instruction, or hybrid model).
Transportation:
ODE said that students who have transportation needs written in their IEPs must continue to receive specialized transportation, as appropriate.
Telehealth:
ODE previously stated that if the IEP team determines that a student’s services will be delivered via telehealth, the IEP should be amended to reflect this. But ODE has since partially revised this guidance as well. While ODE does indicate that if the IEP does not state that services will be provided via telehealth, the IEP should be amended to note this, ODE clarified that this could be accomplished through the IEP amendment process or by convening the IEP team. Yet importantly, ODE also stated that if a district’s overall plan is to provide education through a virtual or partially virtual plan, it is not necessary to amend the IEP to reflect that services are being provided via telehealth. However, the district should document in a PR-01 that parents were informed that services will be provided via telehealth.
ODE also notes that there are no federal or state requirements for additional parental consent is needed to provide services via telehealth (some professional licensure boards do require parental consent so providers should check with their licensure boards). ODE also clarified that IEP related services delivered via telehealth count as IEP minutes delivered; accordingly, providers should keep detailed records of student participation including dates of services, number of minutes delivered, and a description of the services. Lastly, ODE stated that, while districts should make every effort to use HIPAA-compliant platforms (and provided a list of known compliant platforms), ODE noted that the Office of Civil Rights temporarily allowed the use of applications that are not fully HIPAA-compliant, such as FaceTime, Google Hangouts, Skype, and Facebook Messenger video chat.
Districts should review this important guidance and discuss with their legal counsel regarding what steps need to be taken to ensure compliance.