Special Education Law Insights

OCR recently published a Q&A document providing expectations for compliance with civil rights laws during the pandemic. While OCR is not responsible for enforcing the IDEA, it is responsible for Section 504. Because students with IEPs are generally also protected by Section 504, the new guidance is applicable to students both with Section 504 plans and with IEPs. At the same time, OSEP published a Q&A document providing guidance specifically related to the IDEA. Much of the guidance will sound familiar, but you may find a few surprises. OCR Q&A Return to in-person instruction. OCR advises there may be circumstances…
Now that many of us have been doing some form of remote learning for close to 7 months, we are starting to see hearing officers and state agencies weigh in to resolve complaints related to the appropriateness of remote special education services. While we have not yet seen any Illinois decisions, a review of decisions from other states may shed some light on trends and approaches. Read on for a sample of recent cases and takeaways that may be relevant to your school. Participation in Remote Learning In a due process case in Washington, DC, the student had previously been…
While only a handful of cases have been reported related to districts’ provision of special education services remotely, we are watching carefully for lessons learned. So far, courts have not required in-person instruction as stay-put, but have indicated the importance of providing remote services tailored to student needs. These early cases reinforce our guidance to make individualized decisions to meet student needs in these extraordinary circumstances. Further, documenting these determinations in an individualized remote learning plan that is incorporated into the student’s IEP can help guard against both procedural and substantive challenges. The first case comes from the District of…
Schools planning for students to return to campus in person this fall are confronting many significant challenges, including how to support students who may need physical restraint while also maintaining safe practices to minimize the risk of Coronavirus transmission. Schools and IEP teams should start planning to address this issue, such as considering whether additional PPE is needed, whether alternative behavior strategies and interventions could be effective, and whether other changes to the student’s  IEP, including placement, may be warranted to safely provide the student an appropriate education. Additionally, staff need training to understand and comply with the new physical
ISBE and IDPH recently released their guidance related to Starting the 2020-21 School Year. The guidance addresses a broad range of topics, including some suggestions related to special education. The following week ISBE issued an FAQ targeting special education issues.  While many details remain to be worked out at the local level, here are our key takeaways related to placing a high priority on returning students with disabilities to in-person instruction, addressing the needs of medically fragile students, continued remote learning versus homebound instruction, face coverings, and the many demands and challenges facing IEP teams. First, ISBE states that…
On June 30, 2020, ISBE issued an FAQ document with the purpose of assisting school districts in the transition to in-person instruction. This document, which supplements ISBE’s general guidance on return to in-person instruction during Phase 4, does not include waivers or offer flexibility on existing rules. Rather, it summarizes past and current recommendations in a potpourri of categories including (1) ESY, (2) compensatory services, (3) evaluations, (4) class sizes, (5) homebound services, (6) health and safety factors, (7) IEP meetings/mediations/hearings, (8) delivery of special education instruction and related service, and (9) rules related to private special education schools. An…
We recently let you know about a pending bill that would make changes to several special education procedures. Senate Bill 1569 has now been signed by Governor Pritzker as PA 101-0643. The law makes numerous changes related to remote learning. For purposes of special education, consider the following action steps to meet the new requirements:   Determine effective and efficient methods to inform parents that they can select how they want to receive draft documents prior to eligibility and IEP meetings and collect their responses. Options must include regular mail and picking up the documents at the school. Other…
Less than a year ago, Public Act 101-0515 sent Illinois special educators scrambling to comply with an array of new procedural requirements. Now, as if you aren’t dealing with enough challenges related to remote learning and preparing for the unknowns of next school year, Senate Bill 1569, which would make changes in each of the areas impacted by the original Act, just passed in the legislature. While some of the changes provide helpful clarification, others would bring new requirements of which schools need to be aware. Existing Law  The original Act required schools to do the following: Provide parents…
Since the beginning of the COVID-19 pandemic, no formal flexibility has been granted to schools to deviate from State and federal special education requirements. However, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) gave the U.S. Secretary of Education Betsy DeVos the power to appeal to Congress if she believes that waivers should be made to provide flexibility regarding the Individuals with Disabilities Education Act (IDEA). Yesterday, Secretary DeVos made her recommendations to Congress, declining to seek significant flexibility for IDEA provisions. Secretary DeVos only requested limited waivers related to pre-k evaluations. In her report, the one area…
Just as remote learning has become the new normal, we turn to planning for ESY and the 2020-21 school year. While the timeline for returning to school buildings remains uncertain, the eligibility of some students with disabilities for support over the summer remains clear. How should schools think about ESY eligibility this school year? We recommend starting with the same standards that have long governed ESY eligibility. Under IDEA, the IEP team determines whether a student needs special education and related services beyond the normal school year to receive a free appropriate public education (FAPE). ISBE guidance from 2001 reviews…
And so it begins. While we have encouraged schools to focus on meeting student needs during the school closure and planning to meet student needs when we return to school buildings, we knew the temptation to jump ahead to compensatory education questions would be strong. Guidance documents from the U.S. Department of Education and ISBE have contributed to such concerns by stating that IEP teams will need to make individual compensatory education determinations for students when school resumes. Now, a putative class action lawsuit has been filed in Hawaii. The suit alleges that Hawaii denied students FAPE by failing to…
In a previous post, we forecasted further guidance from ISBE and the U.S. Department of Education to provide additional clarity for schools in regard to how to best serve students with disabilities during school closures as a result of the COVID-19 pandemic. Yesterday, ISBE posted an updated FAQ regarding providing special education during remote learning as Illinois schools remain closed for the remainder of the 2019-2020 school year. The 17-page document reviews current requirements, repeating that federal and State law requirements related to students with disabilities are still in effect despite the suspension of in-person instruction. The FAQ tracks closely…
Last fall, in response to serious concerns raised about the use of isolated time out and physical restraint in schools, ISBE issued emergency rules to limit the use of those behavior management techniques. Emergency rules are effective for up to 150 days or until permanent rules are approved, and these emergency rules were due to expire on April 17, 2020.  On April 9, ISBE and JCAR (the bipartisan legislative oversight committee responsible for reviewing and approving agency rulemaking) passed permanent rules regarding isolated time out, time out, and physical restraint. The new rules allow the use of isolated time out…
After three weeks of being out of school buildings and one week of remote learning, we can all see that the IDEA was not written for pandemics and widespread school closures. While requests for IDEA flexibility have been made, the Department of Education has not indicated whether or when such requests might be granted. Federal and State guidance has been provided but continues to evolve. Educators, administrators, parents, attorneys, states, and the Department of Education are all improvising. In these uncertain times, we recommend schools go back to basics: individualize, communicate, document, and be reasonable. Remember that the FAPE standard…
The U.S. Department of Education (ED) recently issued a “Supplemental Fact Sheet” updating its earlier Questions & Answers and Fact Sheet on coronavirus disease 2019 (COVID-19) and clarifying that schools should not refrain from providing distance learning out of fear that they cannot adequately serve students with disabilities. In the updated guidance, ED advises school districts that the delivery of a free appropriate public education (FAPE) may look different when schools are physically closed. The guidance also addresses the impact of school closures on special education timelines, including urging schools “to work with parents to reach mutually agreeable…
On March 18, 2020, ISBE issued guidance on providing special education during the current mandatory two-week school closure. While the guidance responds to some of the questions arising from this unprecedented situation, neither the U.S. Department of Education nor Congress has provided flexibility with respect to IDEA rules, and the State is correspondingly constrained. As we described in our last post, the big picture message is to do your best to provide services to students with disabilities and meet applicable deadlines. Be creative, document your efforts, and expect compensatory education claims once we get back to school. Below are…