Special Education COVID-19 Resources

Special Education Due Process Guidance for the 2020-21 School YearRelated to the Safe Learning Plan for 2020-21, MDH Direct Services Guidance, and Executive Orders 20-81 and 20-82

September 23, 2020

What’s New: Initial Evaluations and Reevaluations

Question 5: The 2020-21 Minnesota Automated Reporting Student System (MARSS) Student Reporting guidance, under the “Planning Days” section, allows districts and schools up to five school days for staff planning purposes when a district switches between instructional delivery models. Would the planning days be considered school days when computing the time needed to complete a special education evaluation or reevaluation?

Response: Under the Individuals with Disabilities Education Act (IDEA), “school day” is defined as follows:

34 C.F.R. § 300.11 (c)(1) School day means any day, including a partial day that children are in attendance at school for instructional purposes.

(2) School day has the same meaning for all children in school, including children with and without disabilities.

Executive Order 20-82, paragraph 29, states that, when dialing back to distance learning or returning to in-person instruction from a distance learning model, a “district or charter school may use up to five instructional days at the impacted school or schools to plan for the change in instructional delivery during the 2020-21 school year . . .These planning days may be counted as instructional days even if students may not be receiving instruction.” See also the 2020-21 MARSS Student Reporting guidance.

These planning days may be counted as instructional days for purposes of calculating average daily membership under Minnesota Statutes, section 126C.05, subdivision 8, counting days of instruction on the school’s annual calendar under Minnesota Statutes, section 120A.41, and other purposes.

However, if students are not actually in attendance at school for instructional purposes during a planning day, our analysis is that the planning day is not a “school day” under IDEA and therefore does not count toward special education timelines that are measured in school days, including the 30-school day evaluation timeline in Minnesota Rules, part 3525.2550. (The planning day would count as a calendar day for other relevant timelines.)

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In-School Direct Services

Question 1: Is there any situation where a district or charter school could not bring students into school for additional services?

Response: Yes. If the data indicates that a charter school or district implement a distance learning model for all grades and all students, it cannot bring in students for in-school services. As stated in the Minnesota Department of Education (MDE) 2020-21 Planning Guidance for Minnesota Public Schools, under the special education section, distance learning is implemented when the severity of infection risk is so significant that in-person contact between school service providers and students must be minimized as much as possible until the risk is reduced and schools are adequately prepared to provide a safe environment for both students and staff.

Question 2: If a district/charter school determines that at the beginning of the 2020-21 school year that it will provide hybrid instruction for elementary students and distance learning for secondary students, can students with disabilities from any grade receive in-person direct services, if needed, to make progress in the general education curriculum and on their Individualized Education Program (IEP) goals?

Response: For a district or charter school that chooses a hybrid model for all students or for elementary school students and distance learning for secondary school students, the MDE 2020-21 Planning Guidance for Minnesota Public Schools under Instruction and Membership for hybrid learning models provides that students with special learning needs or situations could attend at the school site more frequently, up to full-time. When determining which students are in need of additional in-school services, district and charter school leaders can make that determination based on district, school-level and individual student level data collected which informs district leaders about which students were unsuccessful with distance learning; such as students with disabilities in setting three or four programs. District leaders can then provide additional in-school services for those students, as long as they are complying with public health guidelines, which includes Minnesota Department of Health (MDH) 2020-2021 Planning Guide for Schools, the Safe Learning Plan for 2020-21 and MDH Guidance for Delivering Direct Student Support Services.

It is up to school officials to determine the process to be used to review student and school-level data related to the provision of additional in-school services. That determination should be based on data collected at an individual student level or at a program/setting level. Data to be considered would include an individual student’s progress reporting data, including whether a student was able to access distance learning during the 2019-20 school year, as well as data collected at a programming/setting level. See paragraph 32 of the Minnesota Governor Executive Order 20-82 (EO 82) for further guidance on determining the provision of additional in-school services.

Question 3: Based upon the public health parameters in the Safe Learning Plan for the 2020-21 school year, a charter school or school district has a learning model of either in-school learning instruction for all students or hybrid learning for some or all students. If district leaders choose to dial back to a distance learning for all students model when school resumes for the 2020-21 school year, can some in-school services be provided to students with disabilities?

Response: The district leaders should first consult with MDE and MDH, and as of August 24, 2020, the designated regional support team, to ensure they are able to operationalize in-school direct services for students with disabilities by complying with public health guidelines, including the 2020-2021 MDH Guidelines, the Safe Learning Plan for 2020-21 and MDH Direct Services Guidance.

A charter school or school district that dials back to a distance learning model that is more restrictive than what is recommended by the Safe Learning Plan out of caution or to give themselves time to prepare for hybrid later in the year, as addressed in paragraphs 4 and 5 of the Governor’s Executive Order 20-82, must also be able to operationalize the public health guidelines. As outlined in paragraph 32 of Minnesota Governor Executive Order 20-82, the school district may provide in-school direct services for students who are unable to access distance learning. This would be allowed as long as the parameters set out in the Safe Learning Plan for 2020-21 and local health guidance provided through the regional support team do not recommend distance learning for all students.

Consistent with paragraph 32 of EO 82, the school/district, in consultation with its regional team, could expand in-school provision of activities and programming that it deems necessary and that can be operationalized in compliance with public health guidelines. This expansion of in-school activities must be for those services that cannot be provided through a distance learning model and where those services are needed to access that student’s distance learning instruction, provide supports or services schools can safely offer, and create opportunities for meaningful connections between students and teachers.

Face Masks and Face Coverings

Question 1: Can a school district or charter school require its students to wear face coverings?

Response. Under Governor Walz’s Executive Order 20-81, all individuals inside K-12 schools over the age of 5 must comply with face covering and face shield guidance.

Executive Order 20-81 provides that students in K-12 buildings may use face shields, in lieu of face covering, if they are “unable to tolerate a face covering due to a developmental, behavioral, or medical condition” or for students in kindergarten through grade 8, “when wearing a face covering is otherwise problematic for the student.”

Specifically, EO 20-81 provides exemptions to the face covering requirement in K-12 schools, as follows:

Individuals with a medical condition, mental health condition, or disability that makes it unreasonable for the individual to maintain a face covering. This includes, but is not limited to, individuals who have a medical condition that compromises their ability to breathe, and individuals who are unconscious, incapacitated, or otherwise unable to remove a face covering without assistance. These individuals should consider using alternatives to face coverings, including clear face shields, and staying at home as much as possible.

Question 2: Can a school district or charter school require students/parents to provide documentation that a student has a medical condition in order to exempt them from wearing a face covering?

Response. Consistent with the Governor’s Executive Order 20-81 and current MDH guidance, a school district or charter school can require documentation proving a medical condition or other health condition, disability, or mental health, developmental, or behavioral need that would make it difficult to tolerate wearing a face covering. This process would be similar to what is required under Section 504 of the Rehabilitation Act (located at 34 C.F.R. § 104.35), which would include reviewing information available, including medical documentation provided by the parent, to determine a plan to provide a free appropriate public education for the student.

Question 3: What learning options are available to students with a medical condition exception to wearing a face covering?

Response. For students with a medical or other health condition, disability, or mental health, developmental, or behavioral need that prevents those students from being able to tolerate wearing a face covering, all learning options offered by their school district or charter school are available. For students receiving services under the Individuals with Disabilities Education Act (IDEA), the student’s IEP team should review and revise the student’s IEP to address information provided to, or by, the parents related to the student’s ability to wear a face covering, as well as address the student’s anticipated needs and other matters related to the student’s educational programming during the COVID-19 pandemic, including educational placement. As set forth in the MDH 2020-2021 Planning Guide for Schools, school leaders should work with students who cannot tolerate face coverings due to legitimate health reasons (e.g., health conditions, disability) and work to create a school climate that will combat stigma and bullying of these students.

Question 4: What is the consequence for students who refuse to wear a face covering?

Response. For students without a medical or other health condition, disability, or mental health, developmental, or behavioral need that prevents them from being able to tolerate wearing a face covering, school districts and charter schools are encouraged to use positive behavioral strategies and supports (e.g., Positive Behavioral Interventions and Supports (PBIS)) to teach, model and change the cultural norm to reinforce the use of face coverings and/or face shields for students. See MDH 2020-2021 Planning Guide for Schools.

In the event a student without a condition cited above continually refuses to wear a face covering, school districts or charter schools should consult normal discipline policies; however, the use of discipline prior to the implementation of positive behavioral strategies and supports is strongly discouraged. See MDH 2020-2021 Planning Guide for Schools.

Question 5: What is MDE doing to ensure students who are deaf or hard of hearing and rely on lip reading are able to interact with their teachers and classmates?

Response. MDE is working with Minnesota Management and Budget and the Department of Administration to procure a shipment of clear face masks that can be used to control virus spread and allow a student who is deaf or hard of hearing to see the mouth. MDE will be communicating how these masks will be allotted and distributed in the future. School districts and charter schools may also use their federal Coronavirus Aid, Relief, and Economic Security (CARES) Act funding to procure their own shipment of clear face masks.

Initial Evaluations and Reevaluations

Question 1: What is the current federal guidance related to evaluation and reevaluation timelines?

Response: The Office of Civil Rights (OCR)/Office of Special Education and Rehabilitation Services (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.” However, keep in mind that all provisions of IDEA, including timelines, remain in effect during the COVID-19 pandemic. On April 27, 2020, Secretary DeVos recommended a timeline extension of Part C services for students turning age 3 and the district or charter school is unable to complete an initial Part B evaluation. Prior guidance related to initial and reevaluation timelines can be found at Fall Guidance 2020-21: Special Education Due Process.

Question 2: Is there any situation where a district or charter school could not bring students into school to conduct an evaluation or revaluation?

Response: Yes. If the data indicates that a charter school or district implement a distance learning model for all grades and all students, it cannot bring in students for evaluations or reevaluations. As stated in the MDE 2020-21 Planning Guidance for Minnesota Public Schools under the special education section, distance learning is implemented when the severity of infection risk is so significant that in-person contact between school service providers and students must be minimized as much as possible until the risk is reduced and schools are adequately prepared to provide a safe environment for both students and staff as described in the Frequently Asked Questions on Collecting Progress Monitoring Data Virtually.

The National Center on Intensive Intervention at American Institutes for Research asked vendors with assessments appearing on its Academic and Behavior Progress Monitoring Tools Charts to share resources to support virtual administration. The table within the frequently asked questions document summarizes information from vendors and links to available resources to support implementation.

Question 3: If a district/charter school determines at the beginning of the 2020-21 school year that it will provide hybrid instruction for elementary students and distance learning for secondary students, can students with disabilities from any grade attend in-school in order to conduct an evaluation or reevaluation?

Response: For a district or charter school that chooses a hybrid model for all students or a hybrid model for elementary school students and distance learning for secondary school students, the MDE 2020-21 Planning Guidance for Minnesota Public Schools under Instruction and Membership for hybrid learning models provides that students with special learning needs or situations could attend at the school site more frequently, up to full-time. District and charter school leaders can determine which students are in need of additional in-school services or activities based upon the need to complete initial evaluations and reevaluations in a timely manner. That could include students identified under the child find process for initial eligibility, students whose needs have changed and are in need of a reevaluation, students moving from Part C to Part B and in need of a Part B evaluation, or a student aging out under the developmental disability criteria and in need of evaluation to determine eligibility under other categories. District leaders can then provide additional in-school time for those students, as long as they are complying with public health guidelines, which includes Minnesota Department of Health (MDH) 2020-2021 Planning Guide for Schools, the Safe Learning Plan for 2020-21 and MDH Guidance for Delivering Direct Student Support Services.

Question 4: Based upon the public health parameters in the Safe Learning Plan for 2020-21, a charter school or school district has a learning model of either in-school learning instruction for all students or hybrid learning for some or all students. If district leaders choose to dial back to a distance learning for all students model when school resumes for the 2020-21 school year, can students with disabilities attend in-school in order to conduct an evaluation or reevaluation?

Response: The district leaders should first consult with MDE and MDH, and as of August 24, 2020, the designated regional support team, to ensure they are able to operationalize in-school direct services for students with disabilities by complying with public health guidelines, including the 2020-2021 MDH Guidelines, the Safe Learning Plan for 2020-21 and MDH Direct Services Guidance.

A charter school or school district that dials back to a distance learning model that is more restrictive than what is recommended by the Safe Learning Plan out of caution or to give themselves time to prepare for hybrid later in the year, as addressed in paragraphs 4 and 5 of the Governor’s Executive Order 20-82, must also be able to operationalize the public health guidelines. As outlined in paragraph 32 of Minnesota Governor Executive Order 20-82, the school district may provide in-school direct services for students who are unable to access distance learning. This would be allowed as long as the parameters set out in the Safe Learning Plan and local health guidance provided through the regional support team do not recommend distance learning for all students.

Consistent with paragraph 32 of EO 82, the school/district, in consultation with its regional team, could expand in-school activities that would include an initial evaluation or reevaluation that is unable to be completed virtually as described in the Frequently Asked Questions on Collecting Progress Monitoring Data Virtually.

The National Center on Intensive Intervention at American Institutes for Research asked vendors with assessments appearing on its Academic and Behavior Progress Monitoring Tools Charts to share resources to support virtual administration. The table within the frequently asked questions document summarizes information from vendors and links to available resources to support implementation.

Developing Individualized Contingency Plans

Question 1: What is the process to plan for movement between instructional models for students with Individualized Education Plans (IEPs)?

Response: A school district or charter school may plan for potential movement between instructional models by developing an individualized contingency plan addendum to a student’s IEP to describe what special education and related services, and supplementary aids and services, would look like for that student during each model (in-person, hybrid, or distance learning). See MDE’s 2020-21 Planning Guidance: Special Education Due Process.

If moving between instructional models would not change the provision of a free appropriate public education (FAPE) to a student, relevant members of the student’s IEP team and the parent should discuss and document how the school district will provide the special education and related services, and supplementary aids and services in the student’s IEP in each instructional model. See 34 C.F.R. §§ 300.17 and 300.101. This may occur when there is no change in the type or amount of special education and related services provided to the student as outlined in the IEP and the only change is how those same services will be provided, in-person or online.

If moving between instructional models includes changing the provision of FAPE to a student (e.g., changing the type or amount of direct services, adding or removing supplementary aids and services, or increasing or reducing paraprofessional support), the school district could hold an IEP team meeting to discuss with school staff, parent(s), and the student, if appropriate, how to best meet the student’s anticipated needs and provide FAPE in each instructional model and could develop an individualized contingency plan addendum to the student’s IEP. See 34 C.F.R. § 300.324(b). Alternatively, if an annual IEP team meeting has already been held, a school district or charter school could seek the parent’s agreement to amend the student’s IEP by developing an individualized contingency plan addendum without convening an IEP team meeting. If the parent agrees to develop the addendum without an IEP team meeting, the school district or charter school would, with the input of the parent, develop a written document to amend or modify the student’s IEP. See 34 C.F.R. §300.324(a)(4)(i)(ii).

Following the development of an individualized contingency plan addendum that changes the provision of FAPE to the student, the school district or charter school would provide prior written notice proposing to add the individualized contingency plan addendum to the student’s IEP. If the parent signs in agreement or does not object within 14 calendar days, the IEP addendum would go into effect. See 34 C.F.R. § 300.503 and Minnesota Rule 3525.3600. The school district or charter school would then implement the student’s individualized contingency plan based on the school district’s or charter school’s current instructional model. The school district or charter school would not need to review and revise the student’s IEP each time the school district’s or charter school’s instructional model changes, unless the student’s anticipated needs change or another reason for an IEP team meeting arises. See 34 C.F.R. § 300.324(b).

If a school district or charter school does not develop an individualized contingency plan for a student, the school district or charter school may need to convene an IEP team meeting or seek the parent’s agreement to amend the student’s IEP, and provide prior written notice, each time the provision of FAPE needs to change as a result of the school district’s or charter school’s movement between instructional models. See 34 C.F.R. §§ 300.324 and 300.503.

Question 2: Does each student’s IEP need to be amended and prior written notice (PWN) provided during this emergency distance learning period of time? (EXISTING QUESTION No. 4. in Special Education and COVID-19 Questions and Answers: Due Process)

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 delivery 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.

Question 3: Does each student’s IEP need to be amended and prior written notice provided if a district or charter school moves from distance learning only to either the hybrid or in-person learning for all students scenario? (EXISTING QUESTION No. 3 in 2020-21 Planning Guidance: Special Education Due Process)

Response: When moving from a full distance learning model to an in-school learning for all students or hybrid scenario, relevant members of the student’s IEP team and the parent will need to discuss how best to meet the student’s needs. And further, a written document is necessary to set forth any changes needed to provide FAPE through either scenario 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 student’s current IEP. See 34 C.F.R. §300.324(a)(4)(i)(ii). This may result in changing the service delivery from distance learning to a hybrid or in-person learning for all students scenario, or may involve more extensive changes depending upon the needs of the individual student with a disability.

Another method would be using a prior written notice and revised IEP which describes what the hybrid or in-person learning for all students scenario will look like for a student, the provision of any specialized instruction and related services, and what accommodations are necessary to ensure a student can access and make progress toward education standards and IEP goals. If the district or charter school and parents are unable to reach agreement on how to provide FAPE to the student, the prior written notice 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.

In addition, districts and charter schools should also consider that an IEP team may need to reconvene to review and revise a student’s IEP for a student for whom distance learning was not effective during the spring of 2019-20, to address any lack of expected progress, information about the student provided to or by the parents, the student’s anticipated needs, or other matters. See 34 C.F.R. § 300.324(b). For example, due to any portion of the student’s programming continuing with 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 continue to access the instruction in the home environment.

Finally, as provided for in the CDC guidance on Considerations for School Closures (March 13, 2020), the IEP team could also develop a contingency plan that would address the provision of distance learning only, or hybrid instruction model and include what services would look like, including the specific services and their frequency, type and duration. In the event of another emergency statewide closure or a school- or district-wide closure due to community spread or a student’s exposure to a person testing positive for COVID-19.

Further, in making changes to a student’s IEP after the annual IEP team meeting, the parent and the district or charter school 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.