COVID-19 Updates

Special Education and COVID-19 Questions and Answers: Due Process

June 1, 2020

During this unprecedented time, the Minnesota Department of Education (MDE) seeks to ensure equitable educational opportunities for all students while prioritizing their health and well-being.

The following responses are based upon federal guidance to date. We will update responses as needed if we receive new guidance information.

What’s New

Summer Extended School Year (ESY) Services

43. Is there guidance to assist IEP teams in making extended school year eligibility determinations for students with disabilities during the 2019-20 school year?

Response: Extended school year services (ESY) eligibility is based on the individual student’s needs based upon data collected during the school year. This would include data for a large portion of the school year prior to the school closure, as well as data collected during distance learning. Some Individualized Education Program (IEP) teams will already have considered the need for ESY and incorporated that into a student’s IEP. If it has not yet been addressed, IEP teams would need to consider the need for ESY services as they have in the past (although it would be done virtually during the distance learning period). See Minnesota Rules, part 3525.0755. [UPDATED 6/1/2020] School districts and charter schools have the option of providing summer programming and ESY services through a hybrid or a wholly distance learning delivery model. Please see responses to questions 44-45 related to ESY services during the summer of 2020.

The Office of Special Education Programs (OSEP) has not yet specifically addressed the issue of ESY services due to school closures and the implementation of distance learning. What OSEP has addressed is the issue of compensatory education due to school closures. ESY eligibility is determined prior to the end of the school year. Compensatory education is an individualized determination of whether a student is in need of compensatory education due to services not being provided or accessed during the distance learning period. The compensatory education individualized determination is not made until schools resume normal operations. That language can be found in the OSEP/OSERS Supplemental Fact Sheet, dated March 21, 2020.

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The following questions and answers address school district obligations during the eight-day school closure period from March 18, 2020 through March 27, 2020. They have been reorganized for the March 24, 2020 update.

1. What are the responsibilities for school districts during the temporary closure of schools from March 18 through 27, 2020, as set out in the Governor’s emergency Executive Order 20-02?

Response: During the eight-day school closure, Minnesota public schools are to develop their plan for providing instruction to all students through distance learning, in the event of an extended statewide school closure due to COVID-19. The process is described in detail in MDE’s Guidance Document, available on MDE’s COVID-19 Updates webpage (MDE’s Guidance Document), which includes updates. That means that there will be no instruction provided to students during that time period. All schools must have their plans completed and posted on their websites by March 30, 2020. The planning must address how schools will provide a free and appropriate education (FAPE) to students with disabilities.

2. How do we determine what is an FAPE for students with disabilities with an individualized education program (IEP) or Section 504 plan?

Response: The Office of Special Education Programs (OSEP), the Office for Civil Rights (OCR), and the Office of Special Education and Rehabilitative Services (OSERS) have provided guidance on what constitutes FAPE for students with disabilities on an IEP or a Section 504 plan. See MDE Guidance, Special Education Services – IEP or 504 Plan section. As provided in the OCR Fact Sheet and the OCR/OSERS Supplemental Fact Sheet, the provision of FAPE and providing equal access to the general education instruction can occur through distance learning. Those documents provide examples of ways to provide distance learning. This includes direct instruction, related services, and disability-related modifications. In determining how to provide FAPE, an individualized determination must occur with parental participation. The MDE Guidance Document addresses the need to develop a communication process with parents and to review delivery of services with staff as outlined on page 10-11 of the MDE Guidance. The U.S. Department of Education, in its supplemental fact sheet entitled Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Servicing Children with Disabilities, stated, The Department encourages parents, educators, and administrators to collaborate creatively to continue to meet the needs of students with disabilities.”

That document also provides, “School districts must provide a [FAPE] consistent with the need to protect the health and safety of students with disabilities and those individuals providing education, specialized instruction, and related services to these students. In this unique and ever-changing environment, OCR, and OSERS recognize that these exceptional circumstances may affect how all educational and related services and supports are provided, and the [U.S. Department of Education] will offer flexibility where possible. However, school districts must remember that the provision of FAPE may include, as appropriate, special education and related services provided through distance instruction provided virtually, online, or telephonically. Where technology itself imposes a barrier to access or where educational materials simply are not available in an accessible format, educators may still meet their legal obligations by providing children with disabilities equally effective alternate access to the curriculum or services provided to other students.”

3. What does distance learning mean for students with IEPs?

Response: The MDE Guidance document, Distance Learning section defines distance learning as “access to appropriate educational materials and …daily interaction with their licensed teacher(s).” For students with IEPs, the amount of daily interaction with service providers will be determined by the special education and related services the student is required to receive via the student’s IEP.

4. Does each student’s IEP need to be amended and prior written notice (PWN) provided during this emergency distance learning period of time?

Response: The federal guidance received to date does not clearly state when a school district is required to amend an IEP based upon the need to move to a distance learning deliver model due to the COVID-19 pandemic. MDE has consistently provided guidance that in order to develop an individualized distance learning plan for a student with a disability, relevant members of the IEP team and the parent will need to discuss how best to meet the student’s needs in a flexible learning model. And further, that a written document is necessary to set forth any changes needed to provide FAPE through distance learning, and be provided to the parent to ensure agreement and so school staff and the parent understand who will be providing services and how that will occur. This could be accomplished by developing a written document to amend or modify the child’s current IEP. See 34 C.F.R. §300.324(a)(4)(i)(ii). This may result in simply changing the service delivery from in-person to a distance learning delivery model, or may involve more extensive changes depending upon the needs of the individual student with a disability.

5. Do I need a parent to physically sign the PWN document describing the amendments to the IEP based upon the use of distance learning?

Response: If a school district amends a student’s IEP, they can accept an electronic signature or an email from a parent confirming consent to the amendments in the PWN and the amended IEP. This will expedite the amendment process to ensure that the amended IEPs are in place by March 30, 2020. If the district and parents are unable to reach agreement on how to provide FAPE to the student during the time a distance learning plan is in place during the COVID-19 pandemic, the PWN would inform parents of their right to object to the proposal and seek alternative dispute resolution. See 34 C.F.R. § 300.530, Minn. Stat. § 125A.091 and Minn. R. 3525.3600.

6. Could a district provide parents with a PWN and attached individualized distance learning plan amendment document, revising the Student’s IEP, which would describe services to be provided during the distance learning period?

Response: Yes. This is one of several ways a district could document the change in the provision of FAPE to the student: The PWN and attached individualized distance learning plan amendment document could describe what the distance learning delivery model will look like for the student, the provision of any direct and related services, and what accommodations are necessary to ensure the student can access and make progress toward education standards and IEP goals. If the district and parents are unable to reach agreement on how to provide FAPE to the student during the time a distance learning plan is in place during the COVID-19 pandemic, the PWN would inform parents of their right to object to the proposal and seek alternative dispute resolution. See 34 C.F.R. § 300.530, Minn. Stat. § 125A.091 and Minn. R. 3525.3600.

7. Do individualized family service plan (IFSP) teams need to formally modify each child’s plan to reflect changes in service delivery methods and instructional settings?

Response: See the response to Question 4 above.

8. Are school districts required to meet the federal and state timelines for completion of a student’s Part B special education evaluation during the eight-day school closure period?

Response: During the eight-day period, school staff need to be focused on developing their school’s distance learning plan taking into consideration the elements set forth in MDE’s Guidance Document. The eight-day period does not count as a “school day,” because students are not receiving instruction during this period. Accordingly, Part B evaluation timelines would not count the eight school day period that schools are temporarily closed in order to develop their distance learning plans.

9. What if I have an IEP team meeting scheduled during the eight-day planning period?

Response: During the eight-day period, school staff need to be focused on developing their school’s distance learning plan taking into consideration the elements set forth in MDE’s Guidance Document on page 9. Accordingly, school staff should postpone IEP team meetings scheduled during that eight-day planning period. The planning document should address how the school will conduct IEP team meetings virtually in the event of an extended statewide school closure due to COVID-19.

10. Will evaluation timelines (especially the Part C 45-day timeline) apply during the period of time that districts are closed and planning for distance learning?

Response: During the eight-day statewide closure of all public schools in Minnesota, school staff should be focused on determining processes for evaluation timelines in the event of extended school closures due to COVID-19. If this results in the 45-day timeline not being met, then the exceptional circumstances language in the Part C regulations would be applicable. See 34 C.F.R. § 303.310. See OCR/OSERS Supplemental Fact Sheet. The COVID-19 pandemic could be considered an exceptional family circumstance.

11. Will special education fiscal monitoring visits occur during the eight-day closure period?

Response: There will be no further contact from the special education fiscal monitoring team during the eight-day closure period to provide local education agencies (LEAs) with the time to focus on their distance learning plans. All moderate risk level desk reviews are complete and just going through internal review processes. The remaining high risk onsite reviews will be re-evaluated to determine how to proceed after March 30. Those LEAs who still have an onsite review scheduled for this fiscal year will be contacted in April with more information.

12. Are amendments needed to note lapse in service for March 18-27, 2020?

Response: OSEP’s March 12, 2020 technical assistance document, Question A-2, provides that when an LEA closes all of its schools to slow or stop the spread of COVID-19, and the LEA does not provide services to any of its students, then it does not have to provide services to students with disabilities. Accordingly, during this eight-day statewide closure of public schools when no instruction is to be provided so school staff can develop their plans, an amendment is not necessary.

13. Depending on the situation, can we provide direct face-to-face instruction to a child for counseling or mental health services in our district distance learning plan?

Response: No. Your school’s planning document, as detailed in the Special Education section of MDE’s Guidance Document, sets forth examples of what distance learning could look like. This could include tele-therapy for mental health services. It could also include tele-services for speech and language services. However, the distance learning plan cannot include having a staff member or direct service provider being physically in the same location for the provision of specialized instruction or related services.

14. I am wondering if there are any exceptions being made to the Governors Executive Order 20-02, which closed schools for eight days. The residential program that my school serves is sequestered already and has suspended visits with families, etc.

Response: During the eight-day statewide temporary closure of all public schools, there will be no instructional services provided to students. As part of the eight-day planning period, the special education planning will need to address different service delivery methods, such as tele-therapy. MDE’s Guidance Document, Special Education Services – IEP or 504 Plan section provides additional guidance on the planning process for special education services.

15. Does anything need to change regarding time and effort for the LEA staff during the eight-day closure or afterward?

Response: See the information on State and Federal Special Education Funding Changes Due to COVID-19 on the MDE website.

16. What if my district is in the process of being monitored by the program monitoring unit?

Response: MDE recognizes the extraordinary circumstances of this health emergency and districts’ need to address student services. As a result, all program monitoring visits are suspended until further notice. Monitors will be in touch with special education directors to discuss options for this school year.

17. What if a special education complaint, mediation, or facilitated team meetings was filed against our district prior to our district closing?

Response: MDE recognizes the extraordinary circumstances of this health emergency and districts’ need to use the eight day time to develop their instructional plans to serve all students through a distance learning delivery model. As a result, MDE will either contact you to discuss an appropriate extension or send you an email acknowledging that federal and/or state deadlines are postponed during this eight-day period. Following this date, MDE staff will contact your office to discuss new timelines.

18. What if a special education complaint, mediation, or facilitated team meeting is filed against our district during the eight-day school closure period for instructional planning purposes?

Response: MDE recognizes the extraordinary circumstances of this health emergency and districts’ need to use the eight-day time to develop their instructional plans to serve all students through a distance learning delivery model. An acknowledgement letter will be forwarded to your office along with a statement acknowledging that federal and/or state deadlines are postponed until March 30, 2020. Following this date, MDE staff will contact your office to discuss new timelines.

19. What if an administrative due process hearing is pending during the eight-day school closure period for instructional planning purposes?

Response: Your school attorney should contact the assigned administrative law judge to address scheduled proceedings.

20. Is there any guidance regarding how to address the service grid and expectations for staff service time? For example, if a direct service provider is providing weekly services for 30 minutes, do they still need to provide 30 minutes to that student?

Response: As set forth in the Office of Special Education Programs (OSEP) Guidance, school districts and schools must ensure that students with disabilities also have equal access to the same opportunities, including the provision of a FAPE. And, to the greatest extent possible, provide the special education and related services identified in the student’s IEP or Section 504 plan. While school districts are in mandatory closure for an eight-day planning period, relevant members of the student’s IEP team, including related service providers and the parents, need to determine how IEP services will be provided using another modality (distance learning). (See also Question 4 response, above.) Once school is back in session, IEP teams may need to reconvene to determine if compensatory educational services are necessary. Many disability-related modifications and services may be effectively provided online. These may include, for instance, extensions of time for assignments, videos with accurate captioning or embedded sign language interpreting, accessible reading materials, and many speech or language services through video conferencing. See the OCR/OSRS Supplemental Fact sheet.

Due Process Questions that cover the distance learning period beginning March 30, 2020

21. Due to the statewide schools closure for an eight-day planning period, and if we then move to distance learning, will school districts be cited by MDE for failing to conduct a special education re-evaluation at least once every three years?

Response: MDE recognizes it may be difficult for districts to complete special education evaluations, including re-evaluations, during both the eight-day statewide school closure for planning purposes and during a distance learning instructional delivery model. Accordingly, MDE will take these calendar days into account when calculating compliance requirements. Once students begin receiving instruction, through distance learning, school districts may need to consider options including review of already-existing data on the student as well as remote engagement with the student and necessary evaluators. Assessment requiring in-person attendance, however, will need to be postponed due to safety issues. Districts should document efforts used to mitigate any loss of programming to students. Please also review the following fact sheet, entitled Addressing the Risk of COVID-19 in Schools While Protecting the Civil Rights of Students, from the U.S. Department of Education, Office of Civil Rights, beginning on page 3. See also the Supplemental fact sheet entitled Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Servicing Children with Disabilities.

22. How will schools ensure that special education direct service providers have access to a student’s IEP and any amendments to that IEP or other written document that outlines how the student’s special education and related services will be delivered through a distance learning delivery system?

Response: As provided in the special education section of MDE’s Guidance document, in the event of extended school closures, the school district remains responsible for the FAPE of its students eligible for special education services who have an IEP or Section 504 plan. Districts and charter schools must use the closure time to plan how they will continue to meet the requirements of Part B (3- 21) and Part C (birth to 3) of the Individuals with Disabilities Education Act (IDEA), Part B and Part C. This will necessitate communication between the case manager, the general education teachers, the parent/guardian and related service providers to ensure that students with disabilities can be appropriately involved and make progress toward the general education standards and IEP goals. Document revisions in writing and communicate them to parents as well as relevant service providers and general education teachers. See Question 3 in the Q-and-A on School Closure.

23. Does the resident district’s obligation to transport a student to a day treatment center continue in the event that schools move to implement distance learning plans for all their students?

Response: During the period of school closure under Executive Order 20-02, schools are closed and may not provide any educational services, which would include special education and related services including transportation. Once the district begins using a distance learning model, the resident district remains responsible for transportation and educational programming under Minn. Stat. §§ 125A.15 and 125A.51, and can claim those expenditures for state transportation aid. The resident district also may establish reasonable restrictions on transportation, except for court or agency placements when the resident district receives a copy of that order. See Minn. Stat. §§ 125A.15 and 125A.51.

24. Does the school district in which a children’s residential facility is located have an obligation to provide instruction, and necessary transportation for students in that children’s residential facility in the event that the school district moves to implement distance learning plans for all their students?

Response: During the period of school closure under Executive Order 20-02, schools are closed and may not provide any educational services, including special education and related services, and transportation to educational programs. Once the district in which the children’s residential facility is located begins using a distance learning model, the district remains responsible for educational programming and necessary transportation under Minn. Stat. §§ 125A.15 and 125A.51, and can claim those transportation expenditures for state transportation aid. See Minn. Stat. §§ 125A.15125A.51 and 125A.515Also see question 6 on MDE’s Q & A: Care and Treatment Placements and Transportation.

25. How do school districts meet Individuals with Disabilities Act (IDEA) timelines during the distance learning period?

Response: The OCR/OSERS supplemental fact sheet states: “As a general principle, during this unprecedented national emergency, public agencies are encouraged to work with parents to reach mutually agreeable extensions of time, as appropriate.”

26. How do districts and families move forward with Part B (ages 3 to 21) Individualized Education Programs (IEPs) during the period of distance learning?

Response: If a child has been found eligible to receive services under the IDEA, the IEP team must meet and develop an initial IEP within 30 days of a determination that the child needs special education and related services. 34 C.F.R. § 300.323(c)(1).

IEPs also must be reviewed annually. 34 C.F.R. §300.324(b)(1). However, parents and an IEP team may agree to conduct IEP team meetings through alternate means, including videoconferencing or conference telephone calls. 34 C.F.R. §300.328. It is in the best interest of school teams and parents to work collaboratively and creatively to meet IEP timeline requirements, particularly in these challenging times.

Most importantly, in making changes to a child’s IEP after the annual IEP team meeting, the parent of a child with a disability and the school district may agree to not convene an IEP team meeting for the purposes of making any needed changes, and instead develop a written document to amend or modify the child’s current IEP. 34 C.F.R. §300.324(a)(4)(i). These decisions must be individualized for each student with documented parental input.

27. How do districts and families move forward with Part B initial evaluations during the period of distance learning?

Response: In Minnesota, an initial evaluation must be conducted within 30 school days of receiving parental consent. Minn. R. 3525.2550, subp. 2. Eligibility for special education services under Minnesota criteria also must be determined within the evaluation timeline (Minn. R. 3525.2710, subp. 6) and an IEP developed within 30 days of that determination (34 C.F.R. § 300.323(c)). To the extent the school district is able to assess the child without face-to-face contact, the school district should proceed. If an evaluation of a student with a disability requires a face-to-face assessment or observation that cannot occur during distance learning, the evaluation would need to be delayed until school reopens. These same principles apply to similar activities conducted by appropriate personnel for a student with a disability who has a plan developed under Section 504, or who is being evaluated under Section 504. See OCR/OSERS Supplemental Fact Sheet.

28. How do districts and families move forward with Part B reevaluations during the period of distance learning?

Response: A reevaluation of each child with a disability must be conducted at least every three years, unless the parents and school district agree that a reevaluation is unnecessary 34 C.F.R. § 300.303(b)(2). When appropriate, a reevaluation may be conducted through a review of existing evaluation data, which includes any evaluation and additional information provided by the student’s parents. This review may occur without a meeting and without obtaining parental consent, unless it is determined that additional assessments are needed. 34 C.F.R. §300.305(a).

As a reminder, when a district conducts a comprehensive reevaluation, it does not need to include the assessments required for an initial evaluation. Rather, the evaluation plan should include only those assessments needed to gather the needed data as detailed in 34 CFR §300.305 (a). If there is a question about the validity of a prior assessment, that could be a reason to repeat an assessment. However, it is not necessary in a reevaluation to repeat intelligence quotient (IQ) and achievement assessment unless there is a specific need for updated data.

29. Will evaluation/Individual Family Service Plan (IFSP) timelines (especially the Part C 45-day timeline) apply during the period of distance learning?

Response: Under 34 C.F.R. §303.310, the initial evaluation and assessments of child and family, as well as the initial IFSP meeting, must be completed within 45 days of the lead agency receiving the referral. Districts should make reasonable efforts to complete the initial evaluation and assessments. However, under 34 C.F.R. §303.310(a), the 45-day timeline does not apply if the family is unavailable due to “exceptional family circumstances that are documented” in the child’s early intervention (EI) records. If that is the case, the district must specifically document why the evaluation/IFSP was not completed within the 45-day timeline. The COVID-19 pandemic could be considered an exceptional family circumstance. See OCR/OSERS Supplemental Fact Sheet.

30. What if a special education complaint is filed against our district during distance learning period?

Response: Absent agreement by the parties, a state may be able to extend the 60-day timeline for complaint resolution if exceptional circumstances exist with respect to a particular complaint. 34 C.F.R. § 300.152(b)(1). Although the U.S. Department of Education has previously advised that unavailability of staff is not an exceptional circumstance that would warrant an extension of the 60-day complaint resolution timeline, the COVID-19 pandemic could be deemed an exceptional circumstance if a large number of state education agency (SEA) staff are unavailable or absent for an extended period of time. See OCR/OSERS Supplemental Fact Sheet.

31. What if an administrative due process hearing is if filed during the distance learning period?

Response: When a parent files a due process complaint, the local education agency (LEA) must convene a resolution meeting within 15 days of receiving notice of the parent’s complaint, unless the parties agree in writing to waive the meeting or to use mediation. 34 C.F.R. § 300.510(a). While the IDEA specifically mentions circumstances in which the 30-day resolution period can be adjusted in 34 C.F.R. § 300.510(c), it does not prevent the parties from mutually agreeing to extend the timeline because of unavoidable delays caused by the COVID-19 pandemic.

Additionally, although a hearing decision must be issued and mailed to the parties 45 days after the expiration of the 30-day resolution period or an adjusted resolution period, a hearing officer may grant a specific extension of time at the request of either party to the hearing. 34 C.F.R. § 300.515(a) and (c). See OCR/OSERS Supplemental Fact Sheet.

32. Are alternative dispute resolution options, such as mediation and facilitated team meetings, available to parents and districts during the distance learning period?

Response: Yes. MDE will offer remote mediation and facilitated team meetings during the distance learning period. Depending upon the access to technology, parties can agree to participate in remote mediations or facilitated team meetings via telephone conference or video conference. Alternative dispute resolution options will continue to be voluntary on behalf of each party, and will be “scheduled in a timely manner and . . . held in a location that is convenient to the parties to the dispute.” 34 C.F.R. 300.506(b)(5). See also Minn. Stat. § 125A.091.

Other alternative dispute resolution options offered by school districts, such as conciliation conferences and meetings with relevant members of the IEP team after a parental objection to a prior written notice, should remain available and be offered remotely. Minn. Stat. § 125A.091 and Minn. R. 3525.3600.

33. What does direct instruction for staff providing special instruction and/or related services via IEPs look like in the use of a distance learning model during the COVID-19 emergency?

Response: Minnesota Rules 3525.0210, Subpart 14 and Subpart 27, define direct services and indirect services:

Subp. 14. Direct services. "Direct services" means special education services provided by a teacher or a related service professional when the services are related to instruction, including cooperative teaching.

Subp. 27. Indirect services. "Indirect services" means special education services which include ongoing progress reviews; cooperative planning; consultation; demonstration teaching; modification and adaptation of the environment, curriculum, materials, or equipment; and direct contact with the pupil to monitor and observe. Indirect services may be provided by a teacher or related services professional to another regular education, special education teacher, related services professional, paraprofessional, support staff, parents, and public and nonpublic agencies to the extent that the services are written in the pupil's IEP and IFSP.

During the implementation of each districts’ distance learning model, the IEP team will determine how special education and related services will be provided, either directly or indirectly, based on the individual needs of the student. 34 C.F.R. § 300.320(a)(4) and (a)(7).

Instruction may be provided by special education staff, including related service providers. This can occur through a variety of means consistent with the distance learning section of the School Closure Guidance for Minnesota Public School Districts and Charter Schools. This includes, but is not limited to:

  • Paper packets or worksheets, which could be distributed daily by bus route or collected several times a week at a central location.
  • Textbooks.
  • Telephone instruction.
  • Online resources (take into account availability of broadband).
  • Instruction via the school’s learning management system (LMS).
  • Other platforms such as Skype, FaceTime, and Zoom.

Districts will need to address translation and accessibility needs for students and families when developing and providing instructional materials. In its guidance document entitled Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities, from March 21, 2020, the U.S. Department of Education provided:

It is important to emphasize that federal disability law allows for flexibility in determining how to meet the individual needs of students with disabilities.

. . .

The Department encourages parents, educators, and administrators to collaborate creatively to continue to meet the needs of students with disabilities. Consider practices such as distance instruction, teletherapy and tele-intervention, meetings held on digital platforms, online options for data tracking, and documentation. In addition, there are low-tech strategies that can provide for an exchange of curriculum-based resources, instructional packets, projects, and written assignments.

Whether the provision of instructional materials such as work packets or pre-recorded video lessons would constitute direct or indirect services depends on an individual determination of each student’s unique needs by the IEP team. During a conference call entitled Joint NASDE/CASE/CCSSO Webinar on COVID-19 Guidance for Students with Disabilities on March 13, 2020, the Director of the U.S. Department of Education, Office of Special Education Programs (OSEP), further emphasized the importance of considering the individual and unique needs of each student when providing education through alternative methods, including but not limited to virtual instruction, instructional phone calls, and work packets. Specifically, the Director stated:

[Whether work packets sent home for special education students are considered educational service will depend on the individual needs of the student and IEP team will need] to take a look at whether the student would be able to access that information or whether the student would require some additional supports in order for them to be able to complete that work. So that would be based on an individual determination.

Therefore, student programming, which may include direct or indirect services, will depend on each individual student’s unique needs and based on IEP team determination.

When planning student programming, remember the importance of teacher and service provider interaction, whether through online platforms, over the telephone, or through other means. Minnesota’s definition of distance learning includes both students’ “access to appropriate educational materials” and “daily interaction with their licensed teacher(s).” Likewise, courts have stated that independent computer-based instruction that does not involve interaction with a teacher is not a substitute for direct instruction. See, e.g., Downington Area Sch. Dist. v. K.D., 1485 C.D. 2016 (Pa. Commw. Ct. 2017).

Keep in mind that parents also may require consultation with their student’s teachers and related service providers in order to support the student during distance learning. Such consultation with parents, if written in the student’s IEP, could constitute indirect services as defined by Minnesota Rule 3525.0210, subp. 27. These services could include training for parents on the use of technology, information for parents about how a student’s disability impacts their learning, and strategies to address a student’s behavioral needs.

Also, note that the direct and indirect services provided to a student during distance learning may look different from services provided in the student’s traditional school setting, as a student’s disability may manifest itself differently in new learning conditions.

34. How should districts handle transitions from Part C to Part B for children turning 3 during the period of COVID-19 mandated distance learning?

Response: As with all Part C to Part B transitions, the members of the IFSP team must first consider whether the child is potentially eligible for services under Part B. If the child is not deemed to be potentially eligible for Part B, the team should attempt to hold the transition conference virtually and Part C eligibility and services through the IFSP will end at age 3.

  • If the initial Part B evaluation has been completed and Part B eligibility has been established but the IEP team meeting has not yet been held, the IEP team must meet to develop an initial IEP within 30 days of a determination that the child needs special education and related services. See Question 26 and response on how to hold IEP meetings during the period of distance learning.
  • If the initial Part B evaluation has not yet been completed but Part B eligibility can be established during the period of distance learning, then proceed with the initial evaluation as described in Question 27 and response.
  • If the child is deemed to be potentially eligible for Part B but the existing information is insufficient to establish Part B eligibility and the collection of additional necessary information requires face-to-face contact with the student, continue serving the child under Part C even after the child has turned 3. A new enrollment record will need to be created in MARSS documenting the child’s instructional settings using one of the codes appropriate for a child age 3-5. When the period of mandated distance learning ends, conduct an initial Part B evaluation and take all necessary steps to either transition the child to Part B services, or exit the child based on the results of the evaluation.
35. What should a district do if a child eligible under Developmental Delay will turn 7 during the period of COVID-19 mandated distance learning and the required re-evaluation has not been completed?

Response: If the Part B reevaluation can be completed during the period of distance learning, then proceed with the reevaluation as described in Question 28 and response.

If after the review of existing information the team determines that additional information is necessary to establish eligibility and collecting that information requires face-to-face assessment or observation that cannot occur during the period of distance learning, the reevaluation would need to be delayed as described in Question 28 and response. The student’s enrollment record will need to be ended no later than the day before the child’s seventh birthday. A new record must be created in MARSS with a start date on or after the seventh birthday. In the new record, report the student’s primary disability to be the disability category the team believes most-likely. This record can be changed if the evaluation yields different result.

36. If a student with a disability is refusing to participate in the general and special education specialized instruction and related services, what are a school district’s options?

Response: Schools and school districts should have attendance policies in place that accommodate for the implementation of their distance learning model, consistent with the attendance section of the School Closure Guidance for Minnesota Public School Districts and Charter Schools.

For students with disabilities, their IEP/amended IEP/individualized distance learning plan addresses the specially designed instruction, related services, and accommodations and modifications needed for the student to have equal access to the general education instruction provided through distance learning. If, during the period of distance learning, a student is not participating in either general or special education instruction, the student’s IEP team will need to review the student’s IEP to determine if the student is exhibiting different behaviors due to the change in the environment from the school setting to the home setting and to revise the IEP, as appropriate, to address any behavior that is impeding the student’s learning. In addition, the IEP team should review the student’s ability to use the technology used to provide the instruction and related services. 34 C.F.R. § 300.324. This could occur through a virtual online IEP meeting or the amended IEP process. See question 26 regarding IEP meetings above.

IEP teams should note that the direct and indirect services, accommodations and modifications provided during distance learning may look different from the services and supports provided in the student’s traditional school setting, as a student’s disability may manifest itself differently in new learning conditions. As emphasized in a webinar from the National Association of State Directors of Special Education (NASDSE) on March 26, 2020, the change in learning environment necessitates meaningful discussions with parents/guardians about the home environment context and any barriers the student faces to learning at home. During such discussions, the IEP team may consider what training and support parents/guardians need to support the student’s learning, including training on how to utilize technology, provide positive behavioral interventions and supports, and understand the impact of the student’s disability on learning, and may add those services to the student’s IEP/amended IEP/individualized distance learning plan, as appropriate. Districts and schools should develop methods for ongoing communication with the student’s parent/guardian on how to monitor the effectiveness of distance learning for the individual student and to timely respond to parental and student concerns.

37. What steps should a district take if a parent/guardian of a student with a disability objects to the special education services the district is proposing during a period of distance learning?

Response: During this time period, the district continues to follow due process procedures and offer dispute resolution options to the parent (i.e., conciliation conference or meeting with relevant members of the IEP team to discuss the specific part of the proposal or refusal the parent objects to, facilitated team meeting, or mediation) to reach an agreement. See 34 C.F.R. § 300.503, Minn. Stat. § 125A.091, and Minn. R. 3525.3600. Thus, if the parent/guardian objects to a district’s proposed special education and related services during the distance learning period, and requests a conciliation conference or meeting with relevant members of the IEP team, the district will work with the parent/guardian to schedule a conference/meeting (to occur through remote means such a conference call or online platform) to discuss their concerns and attempt to reach resolution. See Minn. Stat. § 125A.091, and Minn. R. 3525.3600.

Following the meeting, the district must timely provide a conciliation conference memorandum, prior written notice, and/or copy of the proposed IEP, as appropriate. See Minn. Stat. § 125A.091 , and Minn. R. 3525.3700. During the dispute resolution process, the district continues to provide special education and related services to the student based on the student’s most recent IEP, albeit through distance learning. A parent/guardian or district also retains the right to request a due process hearing pursuant to 34 C.F.R. § 300.507 and Minn. Stat. § 125A.091, subd. 12.

Please note that during the period of distance learning, students with disabilities are entitled to a free and appropriate public education (FAPE). Due to the switch to distance learning, a parent may be in need of training, such as the use of technology, or positive behavior supports and interventions. Additionally, a student may need additional or different accommodations and supports to be able to access the instruction in the home environment. See Questions 2 and 33 and responses above.

38. Can a parent/guardian revoke consent and refuse to allow a student to receive special education services during a period of distance learning? How should this be documented?

Response: During the period of distance learning students with disabilities are entitled to a FAPE. See Questions 2 and 33 and responses above. If a parent/guardian revokes consent for special education and related services, the district should first discuss the parent/guardian’s concerns, attempt to address any issues, and ensure that the parent/guardian understands the consequences of revocation. If the parent/guardian continues to want to revoke special education services, the district must ensure the revocation is in writing. See 34 C.F.R. § 300.9. Following a written revocation of consent, the district must provide prior written notice proposing to discontinue the student’s special education and related services in response to the parent/guardian’s request. See 34 C.F.R. §300.300(b)(4). After the parent/guardian signs in agreement with the district’s proposal to discontinue services or after the 14-day objection period has passed, the district must stop providing special education and related services and may treat the student as a general education student. See Minn. Stat. § 125A.091, 34 C.F.R. §§ 300.9 and 300.300. The parent/guardian may request reinstatement of the student’s special education and related services within one year. See Minn. R. 3525.3100. For more information, see MDE’s Q&A: Revocation of Parental Consent for the Provision of Special Education Services, also available at https://education.mn.gov/MDE/dse/sped/caqa/due/.

39. Will special education fiscal monitoring visits continue for the remainder of the school year?

Response: At this time, all remaining site visits for special education fiscal monitoring on are hold. The situation continues to be fluid and we are evaluating the best course of action for those who did not have site visits completed yet. We will be in touch with the entities that have not yet had their scheduled site visits as soon as we have further information. If your site visit was completed or you had a targeted desk visit, reports will be sent out as soon as is reasonable.

40. What are a school’s options when a school age student, who receives services under an IEP, is exhibiting concerning behavior while attending child care in the school setting?

Response: Under Executive Orders 20-02 and 20-19, schools are directed to provide care to, at a minimum, district-enrolled students aged 12 and under who are children of emergency workers. In providing this care, schools must practice hygiene and social distancing best practices. In addition, E0-20-19 included the following provision: “19. Employers assigning employees to supervise and care for Eligible Children must ensure compliance with Minnesota Department of Labor and Industry (DLI) regulations, and Minnesota Department of Health (MDH) Guidance regarding Schools and Child Care: Coronavirus Disease 2019 (COVID-19).” The EOs also provided that MDE would provide further guidance related to schools and child care. MDE guidance related to schools and child care can be found on the MDE COVID-19 webpage. The most recent guidance can be found at Minnesota Distance Teaching and Learning Implementation Guidance. Both the MDH and MDE guidance link to the CDC COVID-19 Guidance for child care programs that remain open.

If the child care program is considered an emergency child care program operating under an exclusion, and the school district is operating that program, then the school district’s student code of conduct/student disciplinary policy discipline policy would be applicable for school age students. Minn. Stat. § 121A.41. For students who receive special education services, the school district staff must also ensure that behavioral supports and strategies contained in the IEP or the student’s positive support behavioral plan are being implemented in the school districts’ child care program to the extent possible while following the MDH and CDC guidelines set forth above. If those behavioral supports and strategies are not working in the child care program, the IEP team should meet virtually to review the student’s IEP to address whether the student needs additional behavioral strategies and supports, such as sensory supports if appropriate, in order to address current behavioral challenges and develop new routines in the school aged care setting where the student has access to his or her distance learning instruction. 34 C.F.R. § 300.324.

41. What does progress reporting look like during the extended distance learning period?

Response: The Individuals with Disabilities Education Act (IDEA) and Minnesota rule require that a student’s individualized education program (IEP) include a statement on how progress toward annual goals will be measured, how parents will be regularly informed of their child’s progress toward annual goals, and the extent to which that progress is sufficient to enable the child to achieve the goals by the end of the year. 34 CFR § 300.320(a) (3) and Minn. R. 3525.2810 subpart 1(9). Progress reporting is to be provided at least as often as parents are informed of their nondisabled children’s progress. The United States Department of Education has not requested a waiver of the progress reporting requirement due to the COVID-19 pandemic. In determining a student’s progress toward IEP goals and objectives during the 2019-20 school year, school staff should use data collected prior to the initial closure of schools on March 18, 2020, as described in the IEP. From March 30, 2020, when school districts began providing distance learning to students, through the end of the 2019-20 school year, additional data will need to be collected in order to determine a student’s progress toward their goals and objectives. Depending on the district’s progress reporting period, data would reflect the student’s IEP, as well as progress toward goals and objectives in any IEP amendments or individualized distance learning plans developed with parental participation and consent during the extended distance learning period. Progress monitoring may be collected through a variety of sources, such as assessments, observations, and working with the parent to collect data on a student’s on-task behavior while doing school work. For example, a parent may record a video of the student during the time she or he is doing school work to provide data on the student’s ability to stay on task, or to demonstrate competency for a particular objective or goal. Or, a staff person could be designated as an observer during a virtual classroom activity to collect data on a student’s engagement in the task and classroom participation. Another example of data collection could be a student putting together a portfolio, video, or audio file to demonstrate competence on a particular goal, such as reading comprehension. You can find additional examples in April 30th webinar by Sean Smith at the University of Kansas on” Implementing the IEP in the New Normal.” For additional information about academic progress monitoring tools, The National Center on Intensive Intervention has developed a chart which ranks various monitoring tools to help educators and families select tools that meet standards for technical rigor and address a student’s specific needs.

When it is time to complete progress reporting, based upon the reporting period described in the student’s IEP, and you have not been able to work on a particular objective or goal during distance learning, document the reason why it could not be worked on during that reporting period. If you worked on an objective or goal, but had difficulty in collecting data to determine progress, document the services provided and your attempts to collect data, taking into consideration the examples provided above, as well as data you were able to collect, which may include both quantitative and qualitative data. The purpose is to determine what the student has been able to achieve during the extended distance learning periods, as well as areas in which the student may have made minimal progress or regressed.

42. I am reaching out for any clarification you could offer regarding use of electronic signature as part of the consent process for special education. For example, can a district use electronic signatures for consent for an evaluation plan or a summary evaluation report? Assuming the district would establish basic safeguards to protect the integrity of the process and ensure that relevant parties agree to it.

Response: The use of an electronic signature for parental consent is an area in which flexibility may be needed due to COVID-19. It would be up to a charter school or school district to set a policy with data practices provisions to allow for electronic signatures for parents when written consent is required, and parents would need to agree to use that format. The key is to ensure that the signature is tied to a particular person. This can be accomplished through a third-party digital software that authenticates electronic signatures, such as Adobe Sign, when it includes the date and time of the signature, an authentication code and is attributable to the person intending to sign the document.

44. See What’s New above.
45. If a student’s IEP team has not yet determined a student’s eligibility for ESY services, what does the student’s IEP team need to consider when determining how ESY services would be provided, given the two models, distance learning and hybrid, available for summer and ESY programming?

Response: The student’s IEP team, including the parents, determines a student’s eligibility for ESY services and how those services should be delivered. Minnesota Rule 3525.0755. An IEP team may agree to not convene an IEP team meeting for the purposes of making any needed changes and instead together develop a written document to amend or modify the current IEP. 34 C.F.R. § 300.324(a)(4)(i) and (6). Please see Question 4 and 5 pertaining to the district’s obligations regarding amendments and prior written notice. These decisions must be individualized for each student with documented parental input.

For students enrolled in either a charter school or district offering summer and ESY programming wholly through a distance learning model, IEP teams still determine the frequency, location and duration of ESY services, consistent with 34 C.F.R. § 300.320(a)(7) and the charter school or district’s summer distance learning model. For additional information about the two summer programming delivery models, See Minnesota Summer Programming Guidance for Schools, under the Equitable Summer Programming and Summer Learning Overview sections.

For students enrolled in a charter school or district offering a hybrid approach for summer and ESY programming, IEP teams determine the frequency, location, and duration of ESY services, consistent with 34 C.F.R. § 300.320(a)(7), the charter school or district’s hybrid summer programming model, and current Minnesota Department of Health (MDH) guidance, including recommendations for social distancing. See Minnesota Summer Programming Guidance for Schools, under the In-School Special Education Services section.

46. If a student’s IEP team already had determined the student is eligible for ESY services, what does an IEP team need to consider when determining how ESY services will be provided, given the distance learning and hybrid models available for summer programming?

Response: As set forth in the Minnesota Summer Programming Guidance for Schools in the Summer Learning Overview section, the purpose of the summer guidance is to ensure equitable programming for all students. If a district or charter school offers the hybrid model for summer programming to all its students, then the determination of the frequency, location and duration of services must be made by relevant members of the student’s IEP team. Please see Question 4 and 5 above pertaining to the district’s obligations regarding amendments and prior written notice. If a district or charter school only offers the hybrid model for summer programming for certain grade levels, ESY programming for students in those grade levels would need to be considered by relevant members of the student’s IEP team, including the student’s parents, to determine if some or all of the student’s ESY programming could be provided with hybrid instruction.

The ESY determination should be based on whether the services can be provided in-school consistent with the MDH guidance for social distancing, and the additional guidance found in the Minnesota Summer Programming Guidance for Schools under the In-School Special Education Services section. The student’s parents may choose to opt their student out of in-school summer and ESY programming. See Minnesota Summer Programming Guidance for Schools under the Equitable Summer Programming section.

47. Can we bring students into the school to complete evaluations over the summer?

Response. Yes. As set forth in the summer programming guidance document, under the In-School Special Education Services section, a charter school or district is encouraged to complete Part C and Part B special education initial evaluation/reevaluations that require in-person assessments and observations in-school during summer programming, consistent with MDH guidance. This can occur if the charter school or district has elected to provide summer and ESY programming wholly through a distance learning model or a hybrid summer programming and ESY model.