Special Education COVID-19 Resources

Q & A: Determining In-School In-Person Services and In-Home In-Person Services for Students with Disabilities

November 23, 2020

What’s New

The following information and guidance is provided as a general clarification of current options and safety requirements for school districts to provide in-person services in schools and homes to students with disabilities, as provided for in Executive Orders 20-82, 20-94, applicable sections of other Executive Orders in response to the COVID-19 pandemic, and in accord with current state statutes and rules for special education.

__________________________________________________

Question 1: Can school district or charter school staff provide students with disabilities in-person services in-school for the purpose of supporting the student in accessing educational services when a school district or charter school is implementing the hybrid or distance learning models, or when a parent of a student with a disability chooses a distance learning model?

Answer: As addressed in the Special Education Due Process Guidance for the 2020-21 School Year under the heading “In-School Direct Services,” the student’s individualized education program (IEP) team, which includes the parent, can determine the amount of in-school in-person services the student receives in order to receive a free appropriate public education (FAPE), under the hybrid model, as long as the school district or charter school is in compliance with public health guidance, which includes Minnesota Department of Health (MDH) 2020-21 Planning Guide for Schools, the Safe Learning Plan for the 2020-21 School Year and MDH Guidance for Delivering Direct Student Support Services.

For school districts and charter schools that are operating under a distance learning model due to public health data, in-school in-person services may be provided if the school district, in consultation and coordination with its COVID 19 regional support team, determines it continues to be safe to do so, including safety requirements in the MDH 2020-21 Planning Guide for Schools, the Safe Learning Plan for the 2020-21 School Year and MDH Guidance for Delivering Direct Student Support Services.

For school districts and charter schools that are operating under a distance learning model, and it is a more restrictive learning model than what is recommended in the Safe Learning Plan for the 2020-21 School Year, the student’s IEP or Individualized Family Service Plan (IFSP) team, including the parent, can determine the student’s need for some in-school in-person services as long as the school can meet the public health guidance which includes MDH 2020-21 Planning Guide for Schools, the Safe Learning Plan for the 2020-21 School Year and MDH Guidance for Delivering Direct Student Support Services.

Question 2: Can school district or charter school staff provide students with disabilities in-person services in-home for the purpose of supporting the student in accessing educational services when a school district or charter school is implementing the hybrid or distance learning models, or when a parent of a student with a disability chooses a distance learning model?

Answer: School district or charter school staff may provide a student with a disability in-home in-person services under any of the learning models, including distance learning, if the school district:

A school district or charter school may also have a policy to contract with a qualified community provider in order to provide in-home in-person services to students with disabilities, during the school day, for services identified in a student’s IEP or IFSP.

Question 2b: Does a school district or charter school have discretion to determine if they will contract with a qualified community provider to provide in-home services for students with disabilities?

Answer: It is within the school district or charter school’s discretion to determine if they will contract with a qualified community provider to provide in-home services for students with disabilities. The decision to contract or not does not obviate a school district or charter school’s obligation to provide FAPE to all students with disabilities no matter which instructional learning model is in place.

If the school district or charter school determines to contract with a qualified community provider while under the hybrid or distance learning model, the student’s IEP team, including the parent, are responsible for determining the amount of in-home services the student receives, during the school day, in order to address the student’s anticipated needs to ensure the student receives FAPE. See 34 C.F.R. §§ 300.101 and 300.320(b). The services to be provided by the qualified community provider along with the frequency, location and duration of services should be incorporated into the student’s IEP, IFSP, Individualized Distance Learning Program (IDLP), or contingency learning plan. See 34 C.F.R. § 300.320(a).

If the school district or charter school determines not to contract with a qualified community provide while under a hybrid or distance learning model, the student’s IEP or IFSP team, including the parent, are still responsible for determining how to address the student’s anticipated needs in order for the student to receive FAPE while under a hybrid or distance learning model.

For further federal regulation and guidance, see the following:

  1. 34 Code of Federal Regulations § 300.101
  2. Minnesota Statutes, section 125A.03
  3. Questions and Answers: Providing Services to Children with Disabilities During the Coronavirus Outbreak (March 12, 2020)
  4. Office of Special Education Programs QA 20-01 (September 28, 2020)

In the event that a school district or charter school is unable to provide FAPE as provided in OSEP and OSERS Supplemental Guidance, dated March 21, 2020, then a student’s IEP or IFSP team will need to determine whether and to what extent compensatory services may be needed when schools resume normal operations.

Question 3: What is a qualified community provider?

Answer: A community provider is qualified to provide in-home in-person services to support a student with a disability in accessing distance learning, including specialized instruction, if that provider meets applicable requirements for contracted personnel and services in the Special Education Funding Guide – Section 12 and as specifically found in Minnesota Rules, part 3525.1550.

Question 4: How is it determined that a student with a disability will receive in-home in-person services from a qualified community provider?

Answer: School districts and charter schools may choose whether or not they will contract with a qualified community provider to provide in-home in-person services to a student with a disability. If a school district or charter school chooses to offer contracted services with qualified community providers, it is up to the student’s IEP or IFSP team, including the parent, to determine what necessary services the qualified community service provider provides in order to ensure the student receives a free appropriate public education (FAPE). These services should be incorporated into a revision of the student’s IEP or IFSP. Any in-home direct in-person services provided to a student with a disability by a qualified community provider that are part of the student’s IEP or IFSP are eligible for special education aid and Minnesota Health Care Programs (MHCP) reimbursement if applicable requirements are met, including available waivers and modifications for MHCP billing.

School districts and charter schools are not required to contract with qualified community service providers in order to provide in-home in-person services to a student with a disability while implementing a hybrid or distance learning model. When a school district or charter school chooses not to contract with a qualified community provider to provide in-home services to a student with a disability, it is up to the student’s IEP or IFSP team, including the parent, to determine how to otherwise ensure the student receives FAPE while implementing a hybrid or distance learning model.

School districts and charter schools remain responsible for ensuring a student with a disability receives FAPE even if the school district or charter school contract the provision of in-school in-person services to a qualified community provider.

Question 5: What are additional considerations a school district and charter school should be aware of when contracting with a qualified community provider to provide in-home in-person services to students with disabilities?

Answer: The contracting process is not any different than what is expected from the local education agency (LEA) for any contract they enter into with a third party. MDE does not provide model contracts for procurement. The expectations laid out in this section exemplify the best practice that should be taken to protect yourselves and your students.

School districts and charter schools should consider the following when contracting with a qualified community provider to provide in-home in-person services. When a school district or charter school chooses to contract with a qualified community provider to provide necessary in-home in-person services to a student with a disability, the school district or charter school should ensure a written contract is in place with the community provider agency which outlines the following:

  • Who, where, when, what, how, how much service will be provided, cost, and any parameters.
  • If there are ceilings or floors to the cost.
  • How the service will be measured or monitored by the school district or charter school.
  • Steps that are taken should the community provider agency not be fulfilling the contract.
  • How and when invoicing will occur, and if there is specific documentation that should be included.

The expectation is the school district or charter school monitor the contract and the expectations within that contract, that they are getting what they pay for, and take any steps outlined, as necessary. LEAs have used anything from calendars to basic provider notes to verify services were performed. The LEA and contracted entity can determine what works best between them. It is suggested that any expectations related to how verification will occur be laid out in the contract to ensure the LEA is able to perform any verifying or correction steps they need. The contract may include items such as who will complete and provide background checks, or whether the school district or charter school will pay for travel time and rates, so responsibilities are clear. If the qualified community providers are not full-time employees of the community provider agency, but instead are contracted third parties themselves, the school district and charter school still control what is in the contract between themselves and the community provider agency. Therefore, the school district and charter school may want to consider if a different level of oversight is needed for verification that everything is being provided according to contract.

Contracts between a school district or charter school and qualified community providers to provide in-home in-person services to a student with a disability necessary to support the student in accessing distance learning, including specialized instruction, must include the qualified community provider’s policy and procedures related to providing services during the COVID-19 pandemic. The policy and procedures must outline infection prevention and control measures for the safety of the qualified community provider, student and members of the home who are in attendance during service provision. This includes, but is not limited to, screening for illness, personal protective equipment (PPE), cleaning and disinfecting equipment, supplies and materials used in providing services and a plan for notification should a qualified community provider become ill or be diagnosed with COVID-19 while providing services to the student.

Qualified community providers provide in-home in-person services according to their contracts and student IEPs or IFSPs. In addition, the qualified community provider must provide services in accordance with the Minnesota Department of Health (MDH) 2020-21 Planning Guide for Schools, the Safe Learning Plan for the 2020-21 School Year and MDH Guidance for Delivering Direct Student Support Services.

The qualified community provider is responsible for ensuring proper PPE protocols are in place. The contract should outline whether the school district or charter school will provide or pay for PPE. The state of Minnesota is not providing PPE to contractors. The school district or charter school should ensure that the contracted qualified community provider complies with CDC, Occupational Safety and Health Administration (OSHA) and MDE related guidance to provide for the safety of students, teachers and service providers. In addition, please refer to the OSHA control and prevention requirements.

Question 6: Can school district or charter school staff provide students with disabilities with in-person services in school age care for children of critical workers for the purpose of supporting the student in accessing educational services when a school district or charter school is implementing the hybrid or distance learning models, or when a parent of a student with a disability chooses a distance learning model?

Answer: If a school district or charter school is in hybrid learning, or is in distance learning but the Safe Learning Plan for the 2020-21 School Year and consultation with the COVID 19 regional support team indicates they could operate a hybrid model, a school district or charter school may provide in-person services to students with disabilities in the school age care for children of critical workers on a school site by site basis.

If a school district or charter school is in distance learning because the Safe Learning Plan for the 2020-21 School Year and consultation with the COVID 19 regional support team indicates the district should be in distance learning, in-person services for students with disabilities may still be provided in the school age care for children of critical workers if consultation and coordination with the COVID 19 regional support team indicates it remains safe to do so at that site. The services may be provided by a staff member who is already staffing the school age care room. IEP teams, including the parent, should make individualized determinations about the level of appropriate support school age care staff provide during distance learning in the school-age child care program, and include these expectations in the student’s IEP.

Question 7: If added to the IEP or IFSP, would these contracted services remain part of the student’s IEP or IFSP? How will this play out at the point in time parents are no longer given the option of selecting distance learning for their son or daughter?

Answer: As described in the guidance titled Special Education Due Process Guidance for the 2020-21 School Year under the heading “Developing Individualized Contingency Plans,” a district “may plan for potential movement between instructional models by developing an individualized contingency plan addendum to a student’s IEP or IFSP 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) . 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.” Further, in MDE’s 2020-21 Planning Guidance: Special Education Due Process document, on page 7-8, MDE stated that a contingency plan should include the specific services, and their frequency, type, and duration. See also 34 C.F.R. 300.320(a)(7).

For example, a student’s IEP or IFSP team could develop an individualized contingency plan that provides for contracted services in the student’s home when the student is receiving instruction in a distance learning model. The individualized contingency plan could describe the duration of the contracted services and, if appropriate, could indicate that the contracted services will end when in-school instruction resumes.