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Special Education & COVID-19 FAQs
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The following recommendations acknowledge that IDEA-eligible students are entitled to FAPE and that students, families, and schools are having to adapt to novel circumstances due to the COVID-19 pandemic. Consistent with Secretary DeVos’s April 27, 2020, Report to Congress, these recommendations are also based on the following key principles.
- Schools can, and must, provide education to all students, including children with disabilities;
- The health and safety of children, students, educators, and service providers must be the first consideration;
- The needs and best interests of the individual student, not any system, should guide decisions and expenditures;
- Parents or recipients of services must be informed of, and involved in, decisions relating to the provision of services; and
- Services typically provided in person may now need to be provided through alternative methods, requiring creative and innovative approaches.
Q1. What are compensatory education services?
Compensatory education is an equitable remedy designed to repair educational and functional deficits resulting from the denial of a free appropriate public education (FAPE). In determining compensatory education services, the Colorado Department of Education (CDE) employs a qualitative approach that is intended to place a student in the same position they would have been in if FAPE had been provided, rather than calculating the award to account for the exact amount of service minutes identified on the individualized education program (IEP).
Q2. Why might compensatory education services be required as a result of COVID-19 related school closures or suspension of in-person instruction?
In addition to the traditional use of the term “compensatory education services” to describe services required to remedy a violation of IDEA that resulted in a denial of FAPE, this term is also used by the U.S. Department of Education (ED) to describe services that may be required to remedy the loss of skills/regression as a result of extended school closures and disruptions to in-person instruction, circumstances caused by the pandemic that are beyond the control of schools. Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus 2019 Outbreak (OSEP 3/2020).
During this unprecedented, national emergency, schools must prioritize, above all else, the safety of students, staff, and communities. Consistent with this priority, schools must also ensure that—to the greatest extent practicable—students with disabilities are provided the special education and related services identified on the IEP. Because FAPE must now be provided consistent with the need to protect health and safety, there may be disruptions, delays, and/or changes in how services are provided that result in a student losing skills. Schools must therefore make an individualized determination whether and to what extent compensatory education services may be needed to make up for any skills that may have been lost as a result of COVID-related disruptions to the provision of FAPE.
Q3. Are all IDEA-eligible students entitled to compensatory education services as a result of COVID-19 related school closures or suspension of in-person learning?
Not necessarily. School districts must ensure that individualized determinations are made as to whether and to what extent a student may require compensatory education services to remediate a loss/regression in skills as a result of the inability to provide services during COVID-related disruptions, such as the suspension of in-person instruction.
Until further guidance is available, the CDE anticipates that the following factors will be relevant when determining whether a student requires compensatory education services as a result of COVID-19 related disruptions to the provision of FAPE:
- Rate of progress on IEP goals prior to closure/disruption;
- Difference between IEP progress monitoring data immediately preceding closure/disruption and IEP progress monitoring data collected a reasonable time after the return to in-person instruction;
- Difference between services identified on the IEP and services offered during closure/ disruption, including amount, frequency, duration, type, and delivery model;
- Accessibility of services offered to the student during closure/disruption;
- Changes in the general education curriculum, as well as level and type of instruction for all students during closure/disruption; and
- Input and information from parents concerning student performance during closure/disruption.
Q4. Should a school district provide summer school and/or extended school year (ESY) services for all students with disabilities as a way to address a potential need for compensatory education services resulting from COVID-19 related closures or suspension of in-person learning?
Not necessarily. Compensatory education services and ESY services are not interchangeable, and a particular student may be entitled to one, both, or neither depending on individual circumstances. Although appropriate and effective ESY services may help a student maintain skills, schools must ensure that individualized determinations are made for ESY eligibility/services and compensatory education services. Schools should not create blanket rules offering ESY to all students or offering a set amount of compensatory education services to all students when they return to school. Please see the Q and A section on ESY for additional information.
Q5. When should schools evaluate the need for compensatory education services?
Although compensatory education services may be most appropriately determined when schools return to normal operations, the CDE recommends that the need for such services be considered as the situation evolves, and schools begin to phase-in more services. In addition, schools should consider services that can be provided during COVID-related disruptions that may mitigate the need for and/or amount of compensatory educational services.
Q6. How should schools determine the need for compensatory education services related to COVID-19?
Schools must make an individualized determination that includes input and involvement from parents as to whether a student needs compensatory education services as a result of disruptions to in-person instruction. Compensatory educational services should be determined by collecting and examining student-specific data, including information from parents, to determine if the student lost skills or regressed on IEP goals as a result of COVID-related disruptions in instructional and related services or the inability to provide FAPE. In making this individualized determination, schools should consider a variety of information, including but not limited to: services provided to all students during the suspension of in-person instruction, the ability of the student to access services provided, regression in skills, and progress or lack of progress made on IEP goals. Parental input will also be useful for evaluating student performance during the suspension of in-person instruction and the need, amount, and delivery of compensatory education services.
Q7. How should schools calculate the amount of compensatory education services related to COVID-19?
School should offer compensatory educational services sufficient to allow the student to recoup lost skills and continue to make progress on IEP goals. Parents and schools are encouraged to consider creative and innovative ways to address regression or loss of skills that carefully consider a student’s individual circumstances, including strengths, impact of disability on learning, and stamina. For example, providing targeted, one-on-one tutoring or instruction, combined with adjustments based on frequent progress monitoring, may allow a student to recover lost skills and make progress in less time.
This does not preclude the IEP team from recommending more intensive services for a student, even if the need may be related entirely or partially to disruptions of in-person instruction resulting from COVID-19.
Q8. When can schools provide compensatory education services?
Compensatory educational services may be provided during the regular school day, over school breaks, in intensive, targeted, individualized programs, one-on-one instruction/tutoring, and by outside service providers. If compensatory educational services are provided during the school day, the provision of these services may not be provided in a manner that changes the least restrictive environment or reduces service minutes on a student’s current IEP, unless agreed to by the IEP team, including parent.
Q9. What happens if a parent disagrees with the school district’s offer of compensatory education services?
Parents are still entitled to IDEA’s procedural safeguards when they disagree with a school district’s provision of FAPE, including a disagreement about compensatory educational services offered to address COVID-related interruptions or loss in services. Parents may therefore use IDEA’s dispute resolution processes, mediation, state complaint, and/or due process complaint, to challenge a decision about compensatory education services.
Whether a parent agrees or disagrees, school districts should issue prior written notice (PWN) to inform parents about determinations regarding compensatory education services. In addition to the other required content, the PWN should explain why the school district is making/or refusing to make the offer and describe the information that served as the basis for this determination in sufficient detail.
Q10. What happens if a parent refused services that were provided during the period of school closure? Does the school district still have to make a determination as to the need for compensatory educational services or make an offer of compensatory educational services?
School districts should regularly make and document attempts to provide services, including contact and communication with parents and students. A parent’s refusal of services may excuse the school district from its obligation to consider or provide compensatory educational services, depending on the individualized circumstances. The inability to access the services offered, however, would not be considered a refusal. Similarly, the student’s inability to benefit from the services offered would not be considered a refusal.
Q1: What are extended school year services?
Extended school year services are defined as special education and related services that are provided beyond the normal school year and in accordance with the student’s IEP, at no cost to the parents. ESY services are only provided when a student’s IEP Team makes an individualized determination that the services are necessary for the provision of FAPE. ESY services are appropriate when the body of evidence demonstrates that the student will experience a severe loss of skills or knowledge that will significantly jeopardize the educational benefit gained during the regular school year.
Q2: How might the suspension of in-person instruction due to COVID-19 impact extended school year Extended School Year (ESY) services?
For students who have already been determined eligible for ESY, the school district should –to the greatest extent possible– provide the ESY services identified in the student’s IEP. Recognizing that exceptional circumstances may affect how ESY services are provided, FAPE may include special education and related services provided through distance instruction deemed reasonable and appropriate for a specific student, in consultation with parents, which may include services that are provide virtually, online, telephonically, and through paper and pencil tasks.
For students who have not yet been determined eligible for ESY, the school district should make a good faith effort to proceed with making the annual determination as to whether a specific student is eligible for ESY services. Recognizing that exceptional circumstances may affect the data normally used to make this determination, the CDE encourages school districts to use available and existing data, including prior eligibility for ESY, to answer the guiding questions and address the predictive factors described in CDE’s ESY Guidelines Manual when determining eligibility.
Specific to COVID-related circumstances, the IEP Team should also examine the effect of the suspension of in-person learning on the student’s progress toward their IEP goals. Providing appropriate ESY services may reduce the need for compensatory education services when schools return to normal operations, particularly for students for whom the suspension of in-person instruction has had a significant impact.
Q1: How may IDEA Part B funds be used to support special education students during the suspension of in person learning?
IDEA Part B funds may be used for activities that directly relate to providing, and ensuring the continuity of, special education and related services to children with disabilities. In using Part B funds to ensure continuity, it will be essential that the AU can evidence how these expenditures supported special education students in accessing their IEP services while in person learning was not possible.
See IDEA Allowable Use Guidelines for guiding questions for determining costs that may be charged to IDEA Part B, along with a list of commonly requested costs and their allowability.
Q2: Since there will be unanticipated costs associated with current suspension of in person learning that are not aligned with the AU’s original narrative and budget, will narratives and budgets need to be updated to reflect these changes?
Narratives may need to be updated if cost items are not already in the narrative. For example, if additional unanticipated costs are for instructional supplies, but instructional supplies are already in the narrative, then an update is not required. However, the budgeted amount for instructional supplies may not reflect the amount that is now required due to the unanticipated costs, so a budget update may be necessary. To inquire about narrative updates contact Kim Boylan (Boylan_K@cde.state.co.us). To inquire about budget updates please contact Evan Davis (Davis_E@cde.state.co.us).
Q3: If an AU reduces the local or state and local special education spending for FY 2020-2021 due to reductions in expenditures (especially salary and benefit costs) because of COVID-19, would the pandemic be considered an exception under IDEA maintenance of effort (MOE) compliance?
At this point, CDE does not have any additional guidance from the OSEP, so under IDEA Maintenance of Effort, the non-voluntary reduction of staff is not considered an exception. At this time, there is no waiver for MOE compliance. We will be closely monitoring any fiscal guidance coming from the USDE.
Q1: Is an IEP meeting or amendment required in response to any of the Governor’s executive orders directing all P-12 school districts and the Charter School Institute (CSI) to close school buildings to normal in-person instruction?
No. CDE is not recommending that schools systematically complete IEP meetings or amendments in response to any of the Governor’s executive orders requiring the suspension of in-person learning for all IDEA-eligible students with disabilities. As the state and national response to COVID-19 changes, CDE may provide additional guidance to address a long-term suspension of in-person learning.
Q2: Are schools expected to complete annual IEP reviews during the suspension of in person learning?
Yes. IEPs must be reviewed annually. Parents and the IEP Team may agree to conduct IEP meetings through alternate means such as videoconferencing or conference telephone calls. In addition, the school and the parents may mutually agree to an extension of the timeline for the annual IEP review. Any agreement to extend the child’s existing IEP should be well documented by the school and shared with the parent.
Preschool Special Education and Child Find COVID-19 FAQ Page
All FAQs related to Preschool Special Education and Child Find for children from birth through age 5, are located on the Preschool through 3rd Grade Office Hours Questions and Answers COVID-19 web page.
Q1: What is the purpose of issuing a prior written notice (PWN)?
A PWN must be provided to the parents of a child with a disability before the school proposes to make a change to the identification, evaluation, or educational placement of the child or the provision of FAPE to the child. A PWN is also provided if the school refuses to initiate or change the identification, evaluation, or educational placement of the child or the provision of FAPE to the child. Among other requirements, PWN provide an explanation of why the school proposes or refuses to take the action, a description of each evaluation procedure, assessment, record, or report used by the district as a basis for the action, and a description of other options the IEP team considered and the reasons why those options were rejected.
Q2: Are prior written notices (PWNs) required in response to any of the Governor’s executive orders directing all P-12 school districts and the Charter School Institute (CSI) to close school buildings to normal in-person instruction?
No. CDE is not recommending that schools systematically provide a PWN to all IDEA-eligible students with disabilities in response to any of the Governor’s executive orders requiring the suspension of in-person learning.
Q1:Should schools continue to monitor progress on IEP goals during the suspension of in-person learning?
Yes. Schools should make reasonable, good faith efforts to continue to collect and report progress on IEP goals to parents consistent with the schedule identified on the student’s IEP, even in situations where the school district has decided not to provide report cards. Providing periodic progress reports to parents ensures that they are informed of their child’s progress and can meaningfully participate in IEP team decisions about their child’s educational program, including whether the IEP is reasonably calculated to ensure progress. Progress monitoring data will also be important information to consider in determining whether compensatory education services are required for a particular student when in-person learning resumes.
Q2:How should schools monitor progress during the suspension of in-person learning?
Parents and other IEP Team members should collaborate and partner to identify flexible data collection strategies that can be used to track progress. These might include having the student take an informal performance assessment, sending an assessment home for the student to complete and return, or having the student send assignments/work samples to the educator (via mail, email, or online platform such as Google docs). Consider also how to gather input from others on work completed prior to, and during, the suspension of in-person learning, including information from families.
If the amount of progress was unable to be determined, or work on the annual goal could not be provided due to the suspension of in-person learning, this information should be conveyed to the parent in the progress report.
Q1: Are administrative units (AUs) required to provide FAPE during the suspension of in-person learning?
Yes. AUs must provide a free and appropriate public education (FAPE) consistent with the need to protect the health and safety of students with disabilities and those individuals providing specialized instruction and related services. Recognizing that exceptional circumstances may affect how educational services are provided, FAPE may include special education and related services provided through distance instruction deemed reasonable and appropriate for a specific student, in consultation with parents, which may include services that are provide virtually, online, telephonically, and through paper and pencil tasks.
Q2: Is an AU required to continue to provide services to students with disabilities during a school closure caused by a COVID-19 outbreak?
If schools are closed and no educational services are being provided to the general student population, the AU would not be required to provide services to students with disabilities during that same time. If the school continues to provide educational services to the general student population during a school closure, it must ensure that students with disabilities have access to the same educational opportunities and FAPE. This means that –to the greatest extent possible– the special education and related services identified in the student’s IEP should be provided. Once school reopens, the AU must make every effort to provide special education and related services consistent with the child’s IEP. In addition, the AU would need to make an individualized determination as to whether compensatory services are needed to address regression or loss of skills because of the closure. CDE recognizes the questions surrounding compensatory education services and will work with both AUs and other educational stakeholders to develop more specific guidance as additional information becomes available.
Q3: In the event of school closure, how might the AU provide educational services to students with disabilities?
As noted above, if the district provides educational services to the general student population, the AU must consider ways to ensure that continuing educational activities are also accessible to students with disabilities. Educational services should strive to include equitable access to instruction for all students. Equitable access does not require that all students receive instruction in the same format (e.g., online instruction). AUs should consider the individual learning needs of students in determining how to best meet individual needs.
Q1: Are the timelines for initial evaluations waived due to the suspension of in person learning?
At this time, there are no waivers for initial evaluation timelines. As a result, AUs are encouraged to complete evaluations that do not require face-to-face assessment in a timely manner. Schools and parents may also work together to reach mutually agreeable extensions of time to allow for the completion of a sufficiently comprehensive initial evaluation for which a face-to-face assessment is necessary. Any agreement to extend the timeline for the completion of the initial evaluation should be well documented by the AU and shared with the parent.
If the child’s parents do not agree to an extension, the IEP team may convene virtually to review the existing evaluation data. The IEP team may then determine if there is sufficient evaluation data to make an eligibility decision. If sufficient data exists, the IEP team should make a determination, and, if the child qualifies, develop an IEP. If there is insufficient evaluation data to make a determination, the IEP team will be unable to determine eligibility at this time. The AU may need to seek consent for an initial evaluation when school building operations return to normal at a future date. The CDE will work with both AUs and other educational stakeholders to develop specific guidance around procedures for ensuring the completion of sufficiently comprehensive initial evaluations when it is not feasible due to measures required to protect the health and safety of students and school staff.
Q2: Will the timelines for reevaluation be waived due to the suspension of in person learning?
At this time, there are no waivers for reevaluation timelines. A reevaluation for each child with a disability must be conducted at least every three years, unless the parents and the public agency agree that a reevaluation is unnecessary. As noted above, AUs are encouraged to work with parents to reach mutually agreeable extensions of time. Any agreement to extend the timeline for the completion of the three-year reevaluation should be well documented by the AU and shared with the parent.
In addition, AUs are reminded that a reevaluation may be conducted through a review of existing data, and this review may occur without a meeting and without obtaining parental consent, unless it is determined additional assessments are needed. Reevaluations that require additional assessments but do not require face-to-face assessments or observations may take place during the suspension of in-person learning, if the parents consent.
Decisions to dismiss a student from special education services should not be determined due to an inability to complete a comprehensive reevaluation. If a comprehensive evaluation is not possible due to the suspension of in person learning, the AU should continue to provide special education and related services to the greatest extent possible until the necessary assessments can safely be completed and eligibility can be properly determined. The AU should not determine that a student is no longer eligible based on a reevaluation that is not sufficiently comprehensive.
Q1: What is tele-practice?
Tele-practice is the use of telecommunications to deliver services by special service providers (SSPs) in an educational setting which connects providers to students through technology for assessment, intervention, and consultation.
Q2: Is the use of tele-practice permitted for providing services to students with disabilities in Colorado public schools?
The use of tele-practice by SSPs in Colorado public schools, state operated facilities and approved facility schools, including day treatment programs, is not prohibited by Colorado statute. Services should be consistent with the goals and objectives outlined in the student’s IEP and services delivered through tele-practice may count as IEP minutes. Any required supervision of an assistant, such as a speech language pathologist–assistant, would still apply. Schools utilizing tele-practice should carefully adhere to their local policies governing data privacy and security.
Q3: Can Medicaid be billed for services delivered through tele-practice?
For information regarding billing Medicaid for tele-practice service, please contact the School Health Services Program at the Colorado Department of Health Care Policy and Financing. The School Health Services Program may be reached at 303-866-6328. IEP services should not be delayed due to questions around Medicaid billing.
Q1: Does CDE anticipate that the U.S. Department of Education (USDoE) will waive any of the requirements of the Individuals with Disabilities Education Act (IDEA)?
On March 27, 2020, Congress passed, and the President signed the CARES Act that requires the U.S. Secretary of Education write a report with information regarding flexibility that might be necessary during the COVID-19 pandemic. At this point, CDE does not have any additional information regarding what waivers may be granted. Please check this Q & A document for future updates regarding potential waivers. It is currently the CDE’s understanding that Congress will have to take action in order to implement any waivers to IDEA.
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