Special Education

Special Education and COVID-19 Questions and Answers: Special Education Instruction, Services, Programming, Funding and Resources

August 17, 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.

This document, updated as needed, compiles questions MDE has received relating to special education instruction, services and programming and school closings due to COVID-19. Please refer to it before contacting MDE staff to see if your question has been answered. MDE understands there may be exceptional circumstances that could affect how a particular service is provided.

Disclaimer: These responses are accurate as of the time this document was posted. This situation is fluid and unprecedented and we will continue to do our best to give the most up-to-date guidance.

What’s New

17. The Professional Educator Licensing and Standards Board (PELSB) recently provided guidance on the role of paraprofessionals as districts plan for in-person, hybrid, and/or distance learning models of service delivery. Does this mean paraprofessionals are able to provide instruction in ways they could not before?

From PELSB's 2020-21 Guidance for School Districts and Charter Schools Regarding Teacher Licensure and Permissions:

Paraprofessionals: While a licensed teacher must remain responsible for primary instruction, design and implementation of lesson plans, and assessment of students, paraprofessionals and other non-licensed staff can provide the following support:

· Supervise and provide support to small groups of students (in both an in-person or hybrid model). 

· Monitor and support students through distance learning through regular virtual one-on-one and small group check-ins with students.

Additionally, paraprofessionals and other non-licensed staff with a bachelor’s degree may be issued a Tier 1 license, allowing them to work as teacher of record.

From our perspective, PELSB's guidance related to paraprofessionals and navigating the lack of licensed teachers does not represent any changes to policy or guidance. The allowable paraprofessional responsibilities remain the same. However, PELSB wanted to ensure the districts are aware of the support that paraprofessionals can provide during in-person, hybrid, and distance learning models, and that districts are aware of the possibility of applying for a Tier 1 license if a paraprofessional holds a bachelor's degree or higher.

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1. Where must a Speech Language Pathologist (SLP) be licensed to provide direct services via telepractice for a Minnesota school district?

Both the state where they are located when providing the service and the state where the child is located at the time of service delivery. To clarify licensing requirements, SLPs who are licensed by the Minnesota Professional Educator Licensing and Standards Board (PELSB) and will do distance learning with the options outlined in the MDE Guidance on pages 3 and 4 do not need a Minnesota Department of Health (MDH) license. They will be utilizing distance learning in conjunction with other school staff and will not be doing telepractice in a health care setting.

ASHA continues to update their website with additional information for practitioners.

2. Do SLPs need to have their Certificate of Clinical Competence (CCC) to provide direct services via telepractice for a Minnesota school district?

There is nothing in current Minnesota statute, federal regulations or in ASHA documents that would require CCCs for providing speech language pathology services via telepractice.

3. Can SLPs licensed in Minnesota provide services to students who have temporarily moved out of state during COVID-19?

Currently, this is dependent on the requirements in the state that the child is temporarily residing. The American Speech-Language-Hearing Association (ASHA) is actively encouraging states to make accommodations for out-of-state practitioners during the COVID-19 outbreak. As you may be aware, the Federal government has also asked all governors to waive their licensing restrictions during the outbreak.

Given that the students are residents of Minnesota , you may find that local licensing boards may not deem your remote practice as subject to their rules. The best way to determine if any flexibility exists is to contact these boards directly. Further, in many states school-based practice is exempt from licensing rules and only subject to the rules of the state department of education.

Find information and contacts on all states via ASHA’s state pages (https://www.asha.org/advocacy/state/).

You should also check the ASHA state law/regulations tracker (https://www.asha.org/uploadedFiles/State-Telepractice-Policy-COVID-Tracking.pdf).

4. What will happen to kids with Individualized Education Programs (IEPs) and especially kids in level 4 programs? Parents feel they don’t have the supports to keep kids at home safely.

Once distance learning instruction begins for all students in districts, this also includes students on IEPs in all instructional settings, including those students in Level 4 programs. As per the Governor’s order, districts have planning time from March 18-27 to plan for their distance learning instructional services model.

5. Considering the health risks, for those students mandated to receive related services such as speech and counseling, an online and distance learning platform may not be appropriate manner to deliver services. Does MDE have any resources for Local Educational Agencies (LEAs) to provide guidance?

Please see the Distance Learning section of MDE School Closure Guidance for Public School Districts and Charter Schools for options to consider for distance learning. Additional resources for distance learning for specific disability areas or populations can be found in the resource section of the Q and A document.

6. For related special education providers (speech, occupational therapy (OT)), does the platform for video chat (zoom, Skype, blink, etc.) need to be Health Insurance Portability and Accountability Act (HIPPA) and Family Educational Rights and Privacy Act (FERPA) compliant?

FERPA requirements and HIPAA privacy rule requirements contain similar provisions governing privacy, access and disclosure. However, in the school setting, FERPA, rather than the HIPAA privacy rule, applies to student information and student privacy. This includes information maintained by health-related service providers such as SLPs and occupational therapists when they are working for or on behalf of the school to provide services to students. More information about the application of FERPA and HIPAA to student health records is available from the US Department of Education

FERPA requires that schools cannot disclose private data or personally identifiable information from a student’s education record without consent or an eligible exception. Education records means all records that are directly related to an individual student and that are maintained by an educational agency (school) or someone acting for the school.

If the school is providing services to a student in a way that does not disclose private information from the student’s record, then the law does will not apply. However, if the school has concerns that use of a video platform to provide services could contain and thus could reveal personally identifiable information, then the school should use a platform that incorporates security measures to ensure that private data is encrypted and that it cannot be accessed by individuals who do not have authority to access the data. Taking these steps will help the school comply with both FERPA and the Minnesota Government Data Practices Act, which requires schools to protect private data with appropriate security safeguards.

Schools can also address privacy concerns by informing parents about the proposed services and platform for delivery and seeking parent consent.

Also see the Notification of Enforcement Discretion for telehealth remote communications during the COVID-19 nationwide public health emergency from the U.S. Department of Health and Human Services: “OCR [Office of Civil Rights] will exercise its enforcement discretion and will not impose penalties for noncompliance with the regulatory requirements under the HIPAA Rules against covered health care providers in connection with the good faith provision of telehealth during the COVID-19 nationwide public health emergency.”

7. Question A-5 in the Office of Special Education Programs (OSEP) guidance document states: "Such contingent provisions may include the provision of special education and related services at an alternate location or the provision of online or virtual instruction, instructional telephone calls, and other curriculum-based instructional activities, and may identify which special education and related services, if any, could be provided at the child’s home."
a. What is allowed for an alternate location? Would this be churches, libraries, or other public locations?

Please see the Distance Learning section of MDE School Closure Guidance for Public School Districts and Charter Schools for options to consider for distance learning. The guidance does not involve face to face instruction.

b. Would we be able to bus small numbers of students to these locations to provide services, if this could not be done via the web?

No, please see the Distance Learning section of MDE School Closure Guidance for Public School Districts and Charter Schools for options to consider for distance learning.

c. If a student has a 1:1 paraprofessional and has highly specialized programming, would we send the paraprofessional to the home to assist with education? Would we send the 1:1 para for the designated "school day"?

No, please see the Distance Learning and Special Education Services – IEP or 504 Plan sections of MDE School Closure Guidance for Public School Districts and Charter Schools options to consider.

d. Could we bus small numbers of students to the school to provide services throughout the day or will school locations be considered closed if we move to the distance learning model?

School locations are closed to students needing instruction. Please see the Distance Learning and Special Education Services – IEP or 504 Plan sections of MDE School Closure Guidance for Public School Districts and Charter Schools for options to consider.

8. Will MDE be providing direction on distance learning services by providers such as physical therapists (PT), OT, etc? This feels more challenging to provide these via distance learning. It also appears from the recent FAQ sent that we are not to have students in buildings outside of child care special education services:
a. Are we expected to continue to provide the same number of direct service minutes in the IEP in a distance learning model? This would be different than what seems to be the direction for general education; has MDE stated that a 60 minute in person course has to be 60 minutes through distance learning?

Please see the Distance Learning and Special Education Services – IEP or 504 Plan sections of MDE School Closure Guidance for Public School Districts and Charter Schools for options to consider. IEPs may need to be reviewed and amended during the school planning period as district move to distance learning instruction on March 30.

b. We typically provide services in small groups of students at one time, I believe that if we try to use various forms of technology we may end up violating data privacy rights for our special needs students as we will likely be disclosing who is in the special education group receiving services to anyone in the home working with the student during the lesson. What do you recommend? We will not have the capacity to go from a group of students for 30 minutes to providing 30 minutes individually to each student as our staff already have full teaching schedules with the groups of students.

Please see the Distance Learning and Special Education Services – IEP or 504 Plan sections of MDE School Closure Guidance for Public School Districts and Charter Schools for options to consider. IEPs may need to be reviewed and amended during the school planning period as district move to distance learning instruction on March 30.

c. When and if we are amending services minutes for distance learning, I would assume according to the guidance provided by MDE that this can be the special education teacher connecting daily over the phone with the parent and/or student on the activities provided for special education services and also a check in on how things are going with the general education instruction/work as well?

Yes, that is correct.

9. In the event that a school is closed for an extended period of time due to a disaster, would an IEP team be required to meet? Would an LEA be required to conduct an evaluation of a student with a disability?

IEP teams are not required to meet in person while schools are closed. IEP teams may continue to work with parents and students with disabilities during such school closures and offer advice, as needed. If an evaluation of a student with a disability requires a face-to-face meeting or observation, the evaluation would need to be delayed until school reopens. Evaluations and reevaluations that do not require face-to-face assessments or observations may take place while schools are closed, if the parent consents. 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.

10. Can MDE provide guidance on Medical Assistance (MA) billing for related services during distance learning?

Minnesota Health Care Programs (MHCP) requirements and procedures for school district third party billing are not modified when Medicaid covered services are delivered as part of a program of distance learning for a student with a disability. The requirements are listed in the IEP section of the MHCP Provider Manual. MHCP allows payment for telemedicine services for some IEP health-related services. Telemedicine is defined as the delivery of health care services or consultations while the child or youth is at an originating site and the licensed health care provider is at a distant site. Requirements and procedures for telemedicine are also provided in the IEP section of the MHCP Provider Manual.

11. Will paraprofessionals who under normal operations would be paid entirely by special education funds continue to be paid from that funding source? Do they need to complete time and efforts reports different from those they have completed historically? Since this group of employees are charged 100 percent to special education, they would not have been required to complete a personnel activity report (PAR) each month.

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

12. Are you able to give us any guidance about our Alternative Delivery of Specialized Educational Services (ADSIS) teachers recording service minutes during an extended school closure?

At this time, we are not providing explicit direction to ADSIS practitioners on matters such as recording hours within the Service Hour Spreadsheet or how to modify the language within your approved application for your service delivery model. Once we are able to understand how districts and programs from around the state have adapted to the new reality of distance learning, we will be better equipped to provide explicit direction to all ADSIS practitioners on such matters. 

MDE is advising ADSIS programs to be engaged with their local district plan for distance learning. Local ADSIS programming needs to be included in the district plan. See the MDE Guidance document for more information.

Though the ADSIS service delivery model will inevitably change during this unprecedented time, ADSIS funds are secure. The most important thing to focus on right now is aligning your ADSIS delivery model to your local district plan for distance learning. All of the reporting requirements will become clear once we are able to assess the full impact of distance learning around the state. 

13. If a school staff member is in the high-risk population or lives with someone who is, what are their rights? We have been told they can choose not to work but they will not be paid.

During the closure, if someone is at-risk or lives with/cares for someone at-risk, they should work remotely. If a staff person refuses to work at all, labor agreement and district personnel policies would apply.

14. What are “telehealth” and “telemedicine” services? Can school districts receive Medical Assistance (MA) reimbursement for them?

Telehealth and telemedicine are terms used in the health, mental health and medical services fields. Telehealth usually refers to using telecommunications and information technology to provide access to health assessment, diagnosis, intervention, consultation, supervision and information across distance (e.g. Center for Medicare and Medicaid Services). Telemedicine usually refers to the delivery of health care services or consultations while the child or youth is at one site and the licensed provider is at a distant site (e.g. Minnesota Health Care Programs IEP Services). Telemedicine may be provided with real-time two-way, interactive audio and visual communications, including secure videoconferencing or store-and-forward technology to: provide or support health care delivery; and to facilitate assessment, diagnosis, consultation, treatment, education, and care management (e.g. Telemedicine Delivery of Mental Health Services). Specifically for children’s mental health services, the Children’s Therapeutic Services and Supports definition specifies electronic communication using interactive telecommunications equipment including, at a minimum, audio and video equipment permitting two-way, real-time, interactive communication between the child and a provider who delivers services from a distant site.

 It is possible that the special education services delivered by a school district implementing distance learning may not always and exactly meet these definitions of telehealth and telemedicine, nor do they need to for the sole purposes of special education. These definitions are important for when special education services, especially distance learning delivery of related services, are considered for possible MA reimbursement to a school district.

MDE provides information on selecting an online platform for student services and student privacy in the online setting to help school districts plan provision of services in distance learning plans. Whether a school district can receive Medical Assistance reimbursement for any service, depends upon meeting all applicable requirements for coverage. Basic information from the Department of Human Services on requirements for coverage may be reviewed for Individualized Education Program Services and Children’s Therapeutic Services and Supports. Additional information on third party reimbursement to school districts is also available from the Minnesota Department of Education.

15. Where can I find training information related to use of personal protective equipment (PPE) in schools?

Please see the links from the Centers for Disease Control (CDC) and Minnesota Department of Health (MDH) related to training for PPE in schools and information below:

Using PPE (CDC)

Strategies for Optimizing the Supply of PPE (MDH)

Infection Control (CDC)

School nurses are able to help provide this training. The links are healthcare related so a school nurse may be needed to help guide through as well.

A couple of things districts may want to consider as per recommendation from MDH staff: Document that the person completed training even if watching the video at CDC. Posting pictures/diagrams in places so staff can be reminded how to use PPE. Check in periodically (how frequent probably depends upon the person and type of PPE) if there are any questions or concerns.

Note that this training information does not change the guidance for schools regarding social distancing during the summer of 2020. If services cannot be provided in a way that allows for social distancing, in-school services cannot be provided during the summer. See Minnesota Summer Programming Guidance for Schools, In-School Special Education Services section.

16. If students with disabilities are not able to maintain at least six (6) feet in social distancing in a hybrid mode, must that student be provided instruction using the distance learning model?

Students with disabilities can be served in both in-person and hybrid learning models using the Guidance for Delivering Direct Student Support Services: Staff Protective Equipment (https://www.health.state.mn.us/diseases/coronavirus/schools/directsupport.pdf).

The mitigation efforts used in the learning environment with all students should be used as appropriate for children with disabilities. Socially distance as applicable, wear a face covering/face shield as able, clean shared materials, wash hands frequently, avoid mixing groups, small group size.

Please see recent MDE and Minnesota Department of Health (MDH) documents for specific guidance:

  1. “Hybrid learning with strict social distancing and capacity limits. In this planning scenario, schools must limit the overall number of people in school facilities and on transportation vehicles to 50% maximum occupancy. Sufficient social distancing with at least 6 feet between people must occur at all times. If distancing cannot be achieved in a space or on a transportation vehicle, the number of occupants must be reduced.

MDE 2020-21 School Year Planning Guidance 7/30/20 – page 5 (italicized emphasis added)

  1. “Social distancing is an essential tool to mitigate the risk of transmission of disease, and school staff should evaluate all services to incorporate social distancing as much as possible. The Minnesota Department of Health (MDH) and Minnesota Department of Education (MDE) recognize that a variety of educational programs and services require close, physical, and prolonged contact, and would be difficult to provide to students while still abiding by social distancing guidelines. These include: evaluation for service eligibility; screening for developmental or other health conditions; personal care services; and specialized instruction and related services for students with special health care needs or disabilities.”

MDH Guidance for Delivering Direct Student Support Services: Staff Protective Equipment 7/30/20 – page 1 and 2 (italicized emphasis added)

  1. “School staff will be in close contact with students when they provide certain services, including evaluation for service eligibility, screening for developmental or other health conditions, personal care services, and specialized instruction and related services for students with special health care needs or disabilities. Personal protective equipment must be used to reduce the risk of COVID-19 transmission during the provision of these and other services that require close, physical and prolonged contact.” This guidance applies when planning for all scenarios (emphasis added)

MDH 2020-2021: Planning Guide for Schools Health Considerations for Navigating Covid-19 7/3/2020 – page 9

  1. Please also see Appendix A: Guide for Choosing Protective Equipment of MDH Guidance for Delivering Direct Student Support Services: Staff Protective Equipment 7/30/20 (https://www.health.state.mn.us/diseases/coronavirus/schools/directsupport.pdf).