The U.S. Department of Education has issued an updated Guidance for schools to address the challenges to disabled students from COVID, as schools return to in-person instruction. The Guidance reiterates the need to follow CDC directives for layered prevention strategies, including promoting vaccination and universal and correct mask wearing for all students, staff and visitors, including disabled students. The Guidance emphasizes however the need to account for the individual health needs of disabled students at increased risk of severe illness due to COVID. Safety measures needed for a student to receive FAPE must be included in the student’s IEP.

Pursuant to previous CDC and Dept. of Ed. guidance at https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/k-12-guidance.html (Guidance for COVID-19 Prevention in K-12 Schools) and https://www2.ed.gov/documents/coronavirus/reopening.pdf (ED COVID-19 HANDBOOK Strategies for Safely Reopening Elementary and Secondary Schools), individualized exceptions can be made for masks for disabled students.

RETURN TO SCHOOL ROADMAP: DEVELOPMENT AND IMPLEMENTATION OF INDIVIDUALIZED EDUCATION PROGRAMS IN THE LEAST RESTRICTIVE ENVIRONMENT UNDER THE INDIVIDUALS WITH DISABILITIES EDUCATION ACT, UNITED STATES DEPARTMENT OF EDUCATION OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICE, OSEP QA 21-06 September 30, 2021

A more detailed summary of certain key issues discussed in the Guidance is included below.

A link to the full Q & A Guidance is available at:

https://sites.ed.gov/idea/files/rts-iep-09-30-2021.pdf

Summary – Key Issues

Question A-3: When reviewing and revising a child’s IEP, can the IEP Team also discuss how special education and related services could be provided if circumstances require a change in the service delivery approach, such as from in-person instruction to virtual learning or hybrid instruction?

Answer: Yes. To help ensure the continued provision of FAPE, IEP Teams can identify how the special education and related services included in a child’s IEP can be provided if circumstances require a change from in-person learning. A proactive method that an IEP Team may implement as a strategy for preparedness in the event of future long-term school closures is developing a contingency plan. As part of a child’s annual IEP Team meeting, developing a contingency plan would address the provision of service delivery to account for virtual learning or hybrid instruction. It would also include a description of a child’s specific services, frequency, type, and duration.

Question B-3: May LEAs continue to hold IEP Team meetings virtually after school buildings reopen for in-person instruction or must these meetings be conducted face-to-face?

Answer: Schools can continue to hold IEP Team meetings virtually after school buildings reopen if the parent agrees to a virtual meeting or if continued COVID-19 prevention practices necessitate it. The school must take steps to ensure that one or both parents attend, or are afforded the opportunity to participate in, an IEP Team meeting by notifying them of the meeting early enough to ensure that they can attend and by scheduling the meeting at a mutually agreed upon time and place. Moreover, the parents and the LEA can agree to participate in IEP Team meetings through alternate means such as telephone conference calls or video conferences for any reason. 34 C.F.R. § 300.328. Therefore, LEAs may continue to convene IEP Team meetings virtually, as appropriate.

Question C-1: For LEAs that provided laptops or other technology devices or services to some or all children to facilitate virtual instruction, must they continue to provide such devices or services for a child with a disability who is returning to school for in-person instruction?

Answer: It will depend on the child’s needs. As noted above, each child’s IEP Team must consider whether the child needs assistive technology devices and services as part of the determination of special education, related services, and supplementary aids and services that are needed to enable the child to receive FAPE. 34 C.F.R. § 300.324(a)(2)(v). For some children with disabilities, the continued provision of these devices or services will be appropriate to ensure the provision of FAPE. In this circumstance, the IEP Team should review the child’s use of the laptop computer or other such device that was provided for virtual instruction, along with information provided by the parent and others, including the child, as appropriate. If the IEP Team determines that the laptop or other technology device is an assistive technology device that the child requires in order to receive FAPE, the LEA must provide the necessary assistive technology device.

Question C-3: When should social, emotional, behavioral, or mental health supports be included in a child’s IEP?

Answer: As with other special education and related services, the IEP Team makes the determination of whether, and if so which, social, emotional, behavioral, or mental health supports specific to conditions arising from COVID-19 or other situations should be included in a child’s IEP. For a child already eligible under IDEA, these concerns can be addressed by reconvening the IEP Team to determine whether the current IEP requires revision to include specific social, emotional, behavioral, or mental health supports to ensure FAPE to the child.

Question C-5: What are some examples of social, emotional, behavioral, and mental health supports related to the COVID-19 pandemic that could be included in a child’s IEP?

Answer: The IEP Team may address the child’s social, emotional, behavioral, or mental health needs, through special education and related services, supplementary aids and services provided to the child, and/or program modifications or supports for school personnel. These services and supports may include counseling services for mental health needs (e.g., anxiety, depression, etc.), social skill instruction, explicit reinforcement of positive behavior, and explicit instruction in stress, anxiety, and depression management. Supplementary aids and services may include consultation with a professional with expertise in behavioral interventions to create a positive behavioral support plan, access to counselors, and access to targeted strategies supported by peer-reviewed research to support social, emotional, behavioral, or mental health needs (e.g., anxiety scaling, mindfulness exercises).

Question C-7: Who should be included on a child’s IEP Team when a child with a disability has one or more underlying medical conditions that puts them at increased risk of severe illness if they contract COVID-19?

Answer: In such situations, the IEP Team should include a team member who knows about the health needs of the child, including whether COVID-19 prevention and risk reduction strategies may be needed. As with other children with disabilities, the IEP is developed at a meeting of the IEP Team, which includes the child’s parents and relevant school officials, including related service providers and, whenever appropriate, the child. The IEP Team could include, at the discretion of the parent or the school, individuals such as school health service staff, school nurses, and the child’s health care professional, as appropriate, if the party inviting them determines that they have knowledge or special expertise regarding the child.

Question C-10: Could a State or local law, regulation, rule, or policy that prohibits or limits COVID-19 prevention and risk reduction strategies in the regular education classroom or other settings where the child with a disability could interact with nondisabled peers be inconsistent with IDEA’s requirement to ensure a continuum of educational placements related to placement in the LRE in 34 C.F.R. § 300.115?

Answer: Yes. Schools must make available a continuum of alternative placements to meet the needs of children with disabilities consistent with their IEPs. The continuum must include instruction in regular classes, special classes, special schools, home instruction, and instruction in hospitals and institutions. Likewise, the regulation requires that the continuum include supplementary services (e.g., school-related health services) provided in conjunction with the regular class placement. State or local laws, regulations, or policies may not result in the exclusion of, or prevention of, an eligible child with a disability from being educated in the regular classroom with appropriate supplementary services and with their nondisabled peers when such educational placement is appropriate to that child’s individual needs. IEP Teams and the group deciding the educational placement must be able to appropriately address the in-person school-related health needs of a child with a disability with underlying medical conditions, including using COVID-19 prevention and risk reduction strategies. Otherwise, the child’s parent is left with two equally unacceptable choices.

Question D-1: How should an IEP Team address the adverse impact of educational disruptions caused by the COVID-19 pandemic when developing, reviewing, or revising a child’s IEP for the 2021–2022 school year?

Answer: The IEP Team should consider whether the child may have new or different needs than had been determined prior to the pandemic. Other considerations could include, but are not limited to, revising the IEP to address (1) lost skills or a lack of expected progress toward attaining the child’s annual IEP goals and in the general curriculum at the end of the 2020–2021 school year; (2) updated data (e.g., information gathered from formal and informal assessments, parent input) that reflect the child’s present levels of academic achievement and functional performance following the extended time without face-to-face, in-person special education and related services; (3) all areas of need, whether or not commonly related to the child’s disability category, or if the child may require different or other services to address new areas of need (e.g., behavioral, social, emotional, and mental health needs, needs that arose during the pandemic); and (4) implementing COVID-19 prevention measures such as wearing a face covering/mask or practicing social distancing to provide a safe and healthy school environment and safe participation in the community

Question D-3: What are compensatory services?

Answer: Under IDEA, courts have recognized compensatory services as an equitable remedy to prospectively address the past failure or inability of the LEA to provide appropriate services, including those that were identified on the child’s IEP. That is, courts have ordered such services to address the child’s needs after a failure or inability to provide FAPE over a given period of time.

Question D-4: Who should make the determination as to whether and to what extent compensatory services are needed?

Answer: Neither IDEA nor its implementing regulations expressly address who must make the determination of whether—and if so, what—compensatory services are necessary. It is the Department’s position that, generally, many of the same types of individualized and child-centered deliberations that are appropriate for an IEP Team meeting discussing the child’s IEP, would be appropriate when considering the need for, and extent of, compensatory services. IEP Teams should consider how any additional services determined necessary can be delivered in a manner that does not diminish the child’s opportunities to interact with nondisabled peers to the maximum extent appropriate, and to participate in extracurricular and other nonacademic activities.

Question D-5: How can the IEP Team use available data about the child to inform decisions about compensatory services?

Answer: In the absence of controlling Federal or State law, including case law, or specific SEA or LEA guidance, IEP Teams could consider the following factors, among others: (1) the child’s present levels of academic achievement and functional performance; (2) the child’s previous rate of progress toward IEP goals; and (3) documented frequency and duration of special education and related services provided to the child prior to the service disruptions caused by the COVID-19 pandemic. The child’s present levels of academic achievement and functional performance can include concerns raised by parents, the child, and outside service providers, as well as reviewing present levels of performance in light of the anticipated levels of performance without service disruption due to the COVID-19 pandemic. Previous rates of progress may be determined by considering if the child’s progress toward IEP goals has slowed or decreased and projecting if the child’s current rate of progress will allow the child to attain their goals. Frequency and duration of special education and related services may be determined by reviewing the previously agreed upon IEP compared with the actual services provided while the IEP was in effect. These considerations could guide IEP Team decisions on whether, how, and when the child will access individualized compensatory services, including the time, location, and format of the services needed to achieve the appropriate level of progress. Further, the IEP Team could determine the appropriate timeline for the child to achieve the expected progress toward IEP goals addressed through the provision of compensatory services.

Question D-6: What are some situations in which it may be necessary to provide compensatory services to a child with a disability?

Answer: A child’s IEP Team may determine that compensatory services are necessary to mitigate the impact of disruptions and delays in providing appropriate services to the child. Some examples of situations that might require consideration of whether, and what, compensatory services are necessary include: (1) if the initial evaluation, eligibility determination, and identification, development and implementation of the IEP for an eligible child were delayed; (2) if the special education and related services that were provided during the pandemic through virtual, hybrid, or in-person instruction were not appropriate to meet the child’s needs; (3) if some or all of the child’s IEP could not be implemented using the methods of service delivery available during the pandemic (for example, if the physical therapy and behavioral intervention strategies included in the child’s IEP could not be provided through virtual means); and (4) if meaningful services to facilitate the transition from secondary school to activities such as postsecondary education, vocational education, integrated employment (including supported employment), continuing and adult education, adult services, independent living, or community participation were not provided due to the pandemic.

Question D-7: Must States ensure that compensatory services are available for all IDEA eligible children who need them because they did not receive appropriate services under Part B of IDEA due to pandemic-related closures and other service disruptions?

Answer: Generally, yes. States must ensure FAPE is available to all children residing in the State between the ages of 3 and 21. The Department’s longstanding position has been that IEP Teams are the appropriate vehicle for addressing the need for, and extent of, compensatory services to address the child’s needs based on any failure or inability to provide appropriate services due to circumstances such as teacher strikes, natural disasters, and pandemics. The consideration of compensatory services is just one subset of the IEP Team’s responsibility to address the child’s needs and would arise, for example, due to the impact of the pandemic. A determination of compensatory services by the child’s IEP Team is an appropriate proactive mitigating measure intended to address the needs of the child due to the LEA’s failure or inability to provide appropriate services.

Question D-11: What funds can be used to pay for compensatory services?

Answer: IDEA Part B funds (both the regular IDEA Part B funds and the additional IDEA Part B funds appropriated under section 2014 of the ARP Act), as well as funds provided to States and LEAs through the ESSER Fund and the GEER Fund, may be used for compensatory services. See 34 C.F.R. § 300.203; and Q2 of the Question and Answer Document on Flexibility on IDEA Part B Fiscal Requirements (Jun. 26, 2020)

Question G-2: Under IDEA, is an LEA obligated to provide special education and related services through virtual instruction upon the parent’s request?

Answer: It will depend on whether virtual instruction, in-person attendance, or a hybrid approach are available to all students. These decisions are made by State and local education leaders. If virtual instruction is available to all students in a school district, the district must ensure that a child with a disability whose needs can be met through virtual learning has an IEP implemented that provides all the services and supports necessary for the child to receive FAPE through such service delivery. IDEA also includes “home instruction” in the continuum of alternative placements an LEA must make available to ensure FAPE is available to children with disabilities. 34 C.F.R. § 300.115(b). Home instruction also could be delivered through a virtual, in-person, or hybrid approach.

Question G-3: How does the Department view virtual instruction under the IDEA’s continuum of educational placements for children with disabilities?

Answer: Congress has previously expressed concerns about children with disabilities being excluded entirely from the public school system and about not being able to participate in the general curriculum with their nondisabled peers. Prior to the COVID-19 pandemic, for schools that did not offer virtual instruction to all children, special education and related services provided virtually in the child’s home was generally considered one of the most restrictive environments, as it typically provided little or no opportunity for the child to be educated with nondisabled peers. Virtual learning provided during the pandemic may be deemed less restrictive if it is available to all children and provides the child with a disability, meaningful opportunities to be educated and interact with nondisabled peers in the regular education environment.

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