Special Education COVID-19 Resources

April 23, 2020

Parent Guidance

Based upon Frequently Asked Questions Related to Special Education Due Process During the Distance Learning Period

The following questions and answers address special education due process during the period of distance learning which began on March 30, 2020 in response to the COVID-19 pandemic. This document includes links to documents posted on MDE’s website in order to provide you with more information.

Q: What is distance learning?

Response: Governor Walz, in Executive Order 20-19, authorized and directed a distance learning period beginning on March 30, 2020, through May 4, 2020. In Executive Order 20-19, Governor Walz noted that, “during the Distance Learning Period, public school buildings and facilities must be closed for typical in-school instruction” and “all public schools must provide continuous education based on the distance learning plans developed during the Closure Period [from March 18 through 27, 2020].”

The Distance Learning section of the MDE Guidance document defines distance learning as “access to appropriate educational materials and. . . daily interaction with their licensed teacher(s). It is important to note that distance learning does not always mean e-learning or online learning. It is critical to provide this learning in a format that can be equitably accessed by all students.”

The Special Education Services—Individualized Education Program (IEP) or 504 Plan section of the MDE Guidance document provides guidance to school districts “to develop a distance learning model that includes equitable access to specialized instruction and related services for students with disabilities so that they have access to general education standards and continue to demonstrate progress toward the general education standards and IEP goals.” For students who are eligible for special education and related services, their IEPs guide the determination and implementation of their distance learning, including the amount of daily interaction with service providers.

Q: How is Free Appropriate Public Education (FAPE) for students with disabilities with an IEP or Section 504 plan determined during the period of distance learning?

Response: The U.S. Department of Education, through 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 document, Special Education Services—IEP or 504 Plan section. Specifically, OCR provided a Fact Sheet on March 16, 2020 and OCR and OSERS provided an additional Supplemental Fact Sheet on March 21, 2020, addressing these questions. As stated in both documents, 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, including direct instruction, related services, and disability-related modifications.

OCR/OSERS’s Supplemental Fact Sheet 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.”

Q: Are parents part of the process in determining FAPE for their student during distance learning?

Response: Under IDEA, students’ parents are included in the determination of what constitutes FAPE for their students and how it will be provided. See 34 C.F.R. §§ 300.321 and 300.324. A student’s IEP team, which includes the student’s parents, may agree to conduct IEP team meetings through alternate means, including videoconferencing or conference telephone calls. See 34 C.F.R. §300.328. The student’s IEP team 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 student’s current IEP. 34 C.F.R. §300.324(a)(4)(i). These decisions must be individualized for each student with documented parental input.

The Special Education – IEP and 504 Plan section of the MDE Guidance document addresses the need to develop a communication process with parents and to review delivery of services with staff during distance learning That document encourages school districts to “develop a process to communicate with parents and guardians regarding their student’s services, which include discussion regarding amending IEP’s to address how best to meet the student’s needs in a flexible learning model.” Further, OCR and OSERS, in the March 21, 2020, Supplemental Fact Sheet , stated, “The Department encourages parents, educators, and administrators to collaborate creatively to continue to meet the needs of students with disabilities.”

Q: Can my student receive any direct face-to-face instruction for counseling, mental health services, or other related services during distance learning?

Response: Your school district’s planning document, as detailed in the Special Education Services—IEP or 504 Plan section of the MDE Guidance document, sets forth examples of what distance learning could look like. This could include teleservices to meet mental health or speech and language service needs. 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.

As noted in OSEP’s March 12, 2020, technical assistance document, “schools must ensure that, to the greatest extent possible, each student with a disability can be provided the special education and related services identified in the student’s IEP developed under IDEA [the Individuals with Disabilities Education Act], or a plan developed under Section 504.” However, OSEP also noted that “there may be exceptional circumstances that could affect how a particular service is provided,” and IEP teams “would be required to make an individualized determination as to whether compensatory education are needed.” Likewise, “if a child does not receive services during a closure,” the IEP team “must make an individualized determination whether and to what extent compensatory services may be needed, including to make up for any skills that may have been lost.”

Q: What should I do if the distance learning plan we developed is not working for my student?

Response: As noted the guidance from the U.S. Department of Education, including OSEP’s March 12, 2020, technical assistance document and OCR’s March 16, 2020, Fact Sheet, school districts, during the period of distance learning, should provide “special education and related services to students with disabilities in accordance with the student’s IEP,” which may now include incorporated individualized distance learning plans. If you believe the school district is not following your student’s IEP during the distance learning period, then you could contact your student’s case manager or school district special education administration regarding your concern. You may also request an IEP team meeting to discuss your student’s changing needs with the IEP team (over the phone or through a virtual meeting platform). Your student’s IEP team is best equipped to handle the question of how to provide FAPE and meet your student’s unique needs, and to review and revise your student’s IEP to address your concerns or the student’s anticipated needs. See 34 C.F.R. § 300.324.

You can also discuss with your student’s IEP team whether you need consultation with your student’s teachers and related service providers in order to support your student during distance learning, and those services could be added to your student’s IEP or individualized distance learning plan. See 34 C.F.R. § 300.34. Services could include training on the use of technology, information about how a student’s disability impacts their learning, or strategies to address your student’s behavioral needs.

You may also request a mediation or facilitated team meeting, or engage in other dispute resolution options, including a special education complaint or due process hearing, through MDE at any time, including during the distance learning period. For more information about the dispute resolution services available through MDE, visit the MDE Conflicts in Special Education webpage or email mde.compliance-assistance@state.mn.us.

Q: What if we are unable to reach agreement with the school district on how to provide FAPE to my student during distance learning?

If you and the school district are unable to reach agreement on how to provide FAPE to your student during distance learning, you have the right to object to the proposal and request a conciliation conference, a meeting with relevant members of the student’s IEP team, or alternative dispute resolution, which may be held remotely, such as via telephone or through an online meeting platform. See Minn. Stat. § 125A.091.

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. See Minn. Stat. § 125A.091 and Minn. R. 3525.3600.

Q: How are timelines met 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.”

Q: My student was being evaluated when the school closure period began, and now her school district has moved to distance learning. When can I expect the completed evaluation report?

Response: The U.S. Department of Education, in its OCR/OSERS Supplemental Fact Sheet, noted that initial evaluations should still be completed within state-established timelines, which is 30 school days in Minnesota. See Minn. R. 3525.2550, subp. 2. As also noted in MDE’s Special Education and COVID-19 Questions and Answers: Due Process, to the extent the school district is able to assess your student without face-to-face contact, the school district should proceed with the evaluation. 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.

For an initial evaluation, your student’s eligibility for special education under Minnesota criteria must also must be determined within the evaluation timeline, and a meeting to develop an IEP must be held within 30 calendar days of a determination that a student needs special education and related services See 34 C.F.R. § 300.323(c) and Minn. R. 3525.2710, subp. 6.

The Division of Compliance and Assistance has a designated person assigned to answer phone calls and emails from parents and district staff related to special education due process questions Monday through Friday. Please send questions to mde.compliance-assistance@state.mn.us or call 651-582-8689.