The Office of Public Instruction is committed to supporting students, schools, and families during this unprecedented time. We are grateful to those at the local, state, and federal levels in the continued efforts to be flexible and consider a wide range of delivery methods and modalities in order to make good faith efforts in providing services to student with disabilities in accordance with the intent of the Individuals with Disabilities Education Act (IDEA).  Above all else, prioritizing the health and safety of students, staff, and community members.

The guidance, resources, and tools below are provided to assist districts, IEP teams, and families as they work together to provide the most appropriate services in light of the student, schools, and communities unique individual circumstances. 

US Department of Education Website:COVID-19 (“Coronavirus”) Information and Resources for Schools and School Personnel [ed.gov].”

OPI Website: OPI COVID-19-Information

Email questions to SpedCovid@mt.gov

 

This information is provided to address questions about how, what, and when services should be provided to children with disabilities during the COVID-19 school closure. This document does not impose any additional requirements beyond those included in applicable law and regulations. The responses presented in this document generally constitute informal guidance representing the interpretation of the Office of Public Instruction of the applicable statutory or regulatory requirements in the context of the specific facts presented here and are not legally binding. This guidance is subject to additional guidance issued from the Department of Education. This document will be updated as necessary.

School Building Closures

If schools are closed and are providing educational opportunities to students, what are the requirements for providing special education and related services to students with disabilities?

If a school provides educational opportunities to the general student population during the school closure, the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE.

 

Questions and Answers on Providing Services to Children With Disabilities During the Coronavirus Disease 2019 Outbreak (U.S. Dept. of Ed. March 2020).  “In this unique and ever-changing environment, OCR and OSERS recognize that these exceptional circumstances may affect how all educational and related services and supports are provided, and the Department will offer flexibility where possible. However, school districts must remember that the provision of FAPE may include as appropriate, special education and related services provided through distance instruction provided virtually, online or telephonically.” For further discussion please see Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Children with Disabilities, (U.S. Dept. of Ed. March 21, 2020).

 

Does the school closure create any new prior written notice requirements?

No. The fact that schools were closed due to the COVID-19 outbreak does not require prior written notice to be sent to parents. The school district must give the parent a written notice whenever the school district: (1) Proposes to begin or change the identification, evaluation, or educational placement of their child or the provision of free appropriate public education (FAPE) to their child; or (2) Refuses to begin or change the identification, evaluation, or educational placement of the child or the provision of FAPE to their child.

 

34 CFR 300.503(b) 34 CFR 300.503.  For more information on prior written notice, please see the guide on OPI’s website: OPI Prior Written Notice Q & A

 

After school resumes, must each student’s IEP team discuss and document whether the student needs compensatory education as a result of school closure?

Yes. The guidance from the Department of Education is clear that once a school resumes normal operations, each student’s IEP team must make an individualized determination whether compensatory education is necessary due to a loss of skills. 

Coronavirus Disease 2019 Outbreak (U.S. Dept. of Ed. March 2020); Fact Sheet: Addressing the Risk of COVID-19 in Schools While Protecting the Civil Rights of Students (March 16, 2020); Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Children with Disabilities, (U.S. Dept. of Ed. March 21, 2020). 

There has not been any specific guidance as to how to calculate the compensatory education.  During school building closure, it is important that Districts are documenting what special education and related services are being provided to students with disabilities and tracking student progress. This information will be necessary when the IEP team must make an individual determination as to whether compensatory education is necessary.

 

In our district plans, how do we address proficiency standards for special education students?

If student proficiency levels are different than what is expected for general education students that would be outlined in the IEP. 

 

If the school closure goes longer than the current 2 weeks, will schools be expected to introduce new content to continue to make sure students’ progress?

Schools must ensure that they are providing the services necessary for the student to progress towards completing the measurable annual goals identified in the current IEP. If the student’s progress towards a goal requires additional instructional content, that content must be provided.

Distance or Remote Learning

Does OPI have guidance about which online software districts should use to host virtual meetings?

The OPI cannot give guidance about specific software. Any software/hardware used to host virtual meetings must be compliant with all current state/federal requirements and any of licensure boards or professional certification.

 

Does distance learning or remote learning have to be online learning?

No. Distance or remote learning does not automatically mean online learning and, no specific methodology is required.  Although there are technology-based practices that may work for many students, they may not be an option for every student. Districts must be creative in continuing to meet the needs of students with disabilities and will need to consider available low-tech options as well. 

 

“Where technology itself imposes a barrier to access or where educational materials simply are not available in an accessible format, educators may still meet their legal obligations by providing children with disabilities equally effective alternate access to the curriculum or services provided to other students. For example, if a teacher who has a blind student in her class is working from home and cannot distribute a document accessible to that student, she can distribute to the rest of the class an inaccessible document, and if appropriate for the student, read the document over the phone to the blind student or provide the blind student with an audio recording of reading of the document aloud.” Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Children with Disabilities, (U.S. Dept. of Ed. March 21, 2020).

 

How are Districts to conduct meetings with families that do NOT have access to internet or phones?

 

The U.S. Department of Education in its recent guidance regarding IDEA timelines, stated the following “As a general principle, during this unprecedented national emergency, public agencies are encouraged to work with parents to reach a mutually agreeable extensions of time, as appropriate.” Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Children with Disabilities, (U.S. Dept. of Ed. March 21, 2020).

 

Districts will need to be creative and think of ways to communicate with parents who do not have internet or phone accessibility. If there are no solutions due to the social distancing guidelines, the District may need to look at mutually agreeable extension of time. That is documented through correspondence sent in the U.S. mail.

 

Can paraprofessionals use video conferencing to support students with classroom work?

Maybe. The decision of whether to use video conferencing is up to each district. The use of videoconferencing may have confidentiality considerations if there is anyone in the non-school setting(s) who would otherwise not have access to the student’s “in-person” special education instruction or special education record. 

 

With respect to paraprofessionals, it would also depend on what role the paraprofessional is playing. Instructional paraprofessionals must be under the direct supervision of a licensed teacher.  Instructional paraprofessionals assisting students with special education needs must be under the supervision of the teacher or other professional designated as primarily responsible for instructional planning for the student.  The professional must provide regularly scheduled communication and direction to the instructional paraprofessional and cannot delegate any activity to the instructional paraprofessional that requires professional skill, knowledge, and judgment. ARM 10.55.715.

 

For questions related to potential FERPA concerns and the use of virtual learning:

The Student Privacy and Policy Office has recently put out some guidance on FERPA:  

The OPI hopes to have more guidance information on this in the future.

 

 

Child Find

What should schools do when they need postpone annual Child Find events due to the school closure?

Offer comparable activities as soon as circumstances allow.

Evaluation

Can parents and districts agree to continue the 60-day timeframe for an initial evaluation?

The U.S. Department of Education in its recent guidance regarding IDEA timelines, stated the following “As a general principle, during this unprecedented national emergency, public agencies are encouraged to work with parents to reach a mutually agreeable extensions of time, as appropriate.” Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Children with Disabilities, (U.S. Dept. of Ed. March 21, 2020).

 

A parent and school district can agree to extend the timeline of the initial evaluation. This agreement should be documented in writing and the extension of the timeline should not be open ended. There are other ways of doing a specific extension of time, an example would be to extend the timeline to 20 days after school resumes. 

 

Absent such an agreement, the 60-day timeline applies unless the parent does not produce the child for the evaluation.   In that instance, the district may be unable to complete the evaluation until the parent makes the child available for the evaluation. 34 CFR 300.301(d)(1).

 

What if a student needs a face-to-face assessment or observation as part of their evaluation?   

It is recommended the evaluation team and/or evaluator consider if there is a way for the observation or assessment to be completed even though the school is closed. There are many assessments that do not require in-person face-to-face or observations and those may still be completed during the closure, as long as the parent has given consent.      

 

However, if an evaluation requires a face-to-face assessment or observation and it cannot be done during the school closure, then the evaluation need to be delayed until school reopens.   Fact Sheet: Addressing the Risk of COVID-19 in Schools While Protecting the Civil Rights of Students (March 16, 2020). Again, this agreement should be memorialized in writing and the extension of the timeline should not be open ended.

 

Observations are staff’s objective impressions that document the student's overall functional, behavioral and academic progress during the school year. These observations do not have to be a "snapshot" of the student's behavior on a particular date and time.  OPI Special Education Guidance, page 62, question 5.

 

In the case of a child of less than school age or out of school, an evaluation team and/or evaluator must observe the child in an environment appropriate for a child of that age. In either case, the Evaluation Team determines the appropriate environment for the observation to occur. 34 CFR 300.310(2)(c).

 

If the parent does make the child available for evaluation and assessment through remote visual observation but the child is not physically present in the same setting at the evaluator, the district must determine if the assessments and other evaluation materials used to assess a child are:

  1. In the form most likely to yield accurate information on what the child knows and can do academically, developmentally, and functionally; 
  2. Is it clearly feasible to provide or administer the assessments or other evaluation to assess the child in a modified form;
  3. Are used for the purposes for which the asse­ssments or measures are valid and reliable. If the assessment or measure was not developed to assess a child who is not physically present in the same setting as the evaluator, the district may determine that administering the assessment or measure in a different manner may not be valid and reliable.
  4. Are administered in accordance with any instructions provided by the producer of the assessments. The producer may prohibit the assessment from being administered with an evaluator(s) not being present in the same physical setting as the child or may provide information stating that the validity and reliability of the assessment or evaluation may not reflect the child’s aptitude, achievement level or what the test purports to measure when it is not administered as intended.  34 CFR 300.304(c).

IEP - updated 4/3/2020

*Can districts use electronic mail for administrative purposes under IDEA?

 Under IDEA parents may elect to receive prior written notices, procedural safeguards and due process complaint notices by electronic mail.  34 CFR 300.505. The IDEA doesn’t address the use of electronic mail for other documents required under the IDEA.  OSEP has stated that it is not prohibited to use electronic mail to carry out administrative matters under IDEA, as long as the parent and public agency agree to do so. U.S. Dept. of Educ. Discussion of the Federal Regulations, 71 Fed. Reg. 46687 (Aug. 14, 2006) and OSEP Letter to Breton (March 21, 2014).

 

*Can districts accept electronic or digital signatures from parents indicating consent on required documents under IDEA?

The IDEA does not directly address the use of electronic or digital signatures for obtaining written parental consent. Consent means that the parent has been fully informed of all the information relevant to the activity for which consent is sought, in their native language or other mode of communication, and that the parent understands and agrees in writing.  34 CFR 300.9(a)&(b). OSEP has indicated that electronic signatures for consent may be used, provided there are necessary steps to ensure appropriate safeguards to protect the integrity of the process, consistent with 34 CFR 300.9(b). A parent must understand and agree to the activity for which the parent’s consent is sought. U.S. Dept. of Educ. Discussion of the Federal Regulations, 71 Fed. Reg. at 46629 and OSEP Letter to Breton (March 21, 2014).  

 

FERPA allows parents to use electronic signatures for consent to disclose records as long as the as the process (1) identifies and authenticates a particular person as the source of the electronic signature and (2) indicates the person’s approval of the information contained in the electronic format.  34 CFR 99.30(d).

 

Therefore, districts may choose to use electronic signatures as long as the district is taking steps to ensure the integrity of the process.  There are many options for electronic signatures including but not limited to Adobe Sign, DocuSign or even a parent sending a reply email stating they consent to whatever action the district is providing and typing their name as a signature.  Districts will need to consult with their information technology staff to ensure proper safeguards are in place for protecting student privacy while transmitting and storing electronic information that contains personally identifiable information. All documents and documentation of electronic signatures should be printed and placed in the hard copy special education folder and uploaded in AIM. 

 


 

Does every student’s IEP need to be amended when a school moves to distance learning for the COVID 19 closure?

All the Department of Education’s written guidance on the COVID-19 outbreak to date has been ambiguous as to if an IEP amendment is required.  However, for each student on an IEP, the school district should communicate with the parent and discuss what the distance learning plan will be for that student. For example, how the student will access the general curriculum and what special education services included in the student’s IEP will be provided during the closure. 

 

The District should then document for each student what special education and related services have been offered; and what services were provided. The district must take data to track progress towards the student’s measurable annual goals and benchmarks.

 

This information will be necessary when it comes time for the IEP team to make an individual determination as to compensatory education. If a student is going to continue with homebound learning when school resumes, an IEP amendment changing placement would be required. 

 

Districts need to make a good faith effort to make sure students with disabilities have equal access to the same opportunities, including FAPE. “SEAs, LEAs, and schools must ensure that, to the greatest extent possible, each student can be provided the special education and related services identified in the student’s IEP developed under IDEA…” Questions and Answers on Providing Services to Children With Disabilities During the Coronavirus Disease 2019 Outbreak (U.S. Dept. of Ed. March 2020).

 

“It is important to emphasize that federal disability law allows for flexibility in determining how to meet the individual needs of students with disabilities. The determination of how FAPE is to be provided may need to be different in this time of unprecedented national emergency.  As mentioned above, FAPE may be provided consistent with the need to protect the health and safety of students with disabilities and those individuals providing special education and related services to students. Where, due to the global pandemic and resulting closure of schools, there has been an inevitable delay in providing services- or even making decision about how to provide services- IEP teams (as notes in the March 12, 2020 guidance) must make an individualized determination whether and to what extent compensatory services may be needed when schools resume normal operations.”  Supplemental Fact Sheet Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Children with Disabilities, (U.S. Dept. of Ed. March 21, 2020).

 

If Districts amend IEPs, do they have to amend the IEP again when school resumes? 

As always, in making changes to the IEP after the annual IEP meeting, the parent and the district may agree not to convene an IEP meeting and instead may develop a written document to amend or modify the current IEP. 34 CFR 300.324(a)(4) and (6). The IEP amendment does not change the date of the required annual review. The amended IEP cannot be implemented until the parent has consented to the amendment. Additionally, prior written notice is required when an IEP is amended. 34 CFR 300.503.

 

Districts may need to amend the IEP to document any change of services due to school building closure. If an amendment to the IEP is done, it must be done in accordance with the normal amendment procedures.  Districts must have documentation of the parents’ agreement with the amendment. This could include an electronic signature, email or letter from the parent stating that they are in agreement.

 

Depending on what amendments are made to the IEP, the IEP team may need to reconvene when school resumes to determine if changes are necessary to the amended IEP.

 

If, for example, the IEP is amended to reflect whether or not a student needs ESY, the IEP team may not need to reconvene when school resumes.  However, if there was an amendment made to decrease service minutes, this would need to be addressed by the IEP team when school resumes and service minutes increase.

Related Services

The professional learning opportunities and resources shared on this webpage do not represent guidance from the Office of Public Instruction and do not create any additional requirements for school district to use these resources.  This page will be updated as new resources become available.

The professional learning opportunities and resources shared on this webpage do not represent guidance from the Office of Public Instruction and do not create any additional requirements for school district to use these resources.  This page will be updated as new resources become available.

Weekly Directors calls are now scheduled on Thursdays from 8 am to 9 am.  We will be addressing whatever pressing issues have come up in the past week and update you on resources and OPI activities.  The Go To Meeting login/call in information is below and will be used for all the weekly meetings.  

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Directors Call PowerPoints

April 2, 2020