P.O. Box 202501 • Helena, MT 59620-2501
Putting Montana Students First
The Office of Public Instruction (OPI) is committed to supporting students, schools, and families during the unprecedented challenge of COVID-19 so that children with disabilities continue to receive a free and appropriate public education (FAPE) as required under the Individuals with Disabilities Education Act (IDEA).
The guidance, resources, and tools below are provided to assist schools, IEP teams and families as they work together to provide appropriate services in light of the student’s, the school’s, and the community’s 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
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.
COVID-19 Compensatory Services
Due to the ever-changing nature of the COVID-19 pandemic, this guidance will be updated as necessary. It is important that LEAs continually check resources for the most up to date information. Additionally, this guidance does not constitute legal advice or create additional laws or requirements. LEAs are always encouraged to consult with their legal counsel when deciding how to proceed in a specific factual scenario.
In the unique and ever-changing environment created by COVID-19, the U.S. Department of Education has recognized that these exceptional circumstances may affect how services are provided and that during the national emergency, schools may not be able to provide all services in the same manner they are typically provided. Per state and federal guidance and the implementing regulations, local educational agencies (LEAs) are required to provide equitable access to general education opportunities and to continue to provide a free and appropriate education (FAPE) to students with disabilities to the maximum extent possible.
Due to the exceptional circumstances created by the COVID-19 pandemic last spring, the U.S. Department of Education issued several guidance documents pertaining to special education and students with disabilities, three of which reference the potential for COVID-19 compensatory services:
March 12, 2020: “The Department understands there may be exceptional circumstances that could affect how a particular service is provided. In addition, an IEP Team and, as appropriate to an individual student with a disability, the personnel responsible for ensuring FAPE to a student for the purposes of Section 504, would be required to make an individualized determination as to whether compensatory services are needed under applicable standards and requirements.”
March 16, 2020: “The Department understands that there may be exceptional circumstances that could affect how a particular service is provided. If a student does not receive services after an extended period of time, the student’s IEP Team, or appropriate personnel under Section 504, must make an individualized determination whether and to what extent compensatory services are needed consistent with the respective applicable requirements, including to make up for any skills that may have been lost.”
March 21, 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 closures of schools, there has been an inevitable delay in providing services – or even making decisions about how to provide services - IEP teams (as noted 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.”
What are COVID-19 compensatory services?
“Compensatory services” are not expressly defined in the IDEA; however, courts, hearing officers and state educational agencies, through state administrative complaints, have long awarded “compensatory education” as an appropriate remedy under the IDEA when a student has been denied a FAPE. In contrast, the necessity of COVID-19 compensatory services is to be contemplated for each student with a disability and is to be determined proactively by a student’s IEP team.
When might compensatory services need to be considered?
Until schools resume normal operations, making determinations about the need for COVID-19 compensatory services is premature. LEAs will need to have a reasonable amount of time to collect data on each student, as to what his or her present performance levels are, before IEP teams can contemplate whether compensatory services will be necessary.
Will all students need compensatory services?
No, the determination as to if COVID-19 compensatory services are necessary for a student is up to each student’s IEP team. The determination must be individualized and based on the needs of each individual student. Not every student will need additional or COVID-19 compensatory services. Parents are important members of a student’s IEP team and should be included in the decision-making process.
COVID-19 compensatory services may be necessary, because due to the exceptional circumstances and extended school closures caused by the pandemic, a student did not receive a particular service or in rare circumstances, any services on his or her IEP, for an extended period of time; therefore, the IEP team determines the student did not receive FAPE or that the student lost skills. If a student’s IEP team determines the student needs additional services, COVID-19 compensatory services may be necessary.
How do IEP teams determine what students will need compensatory services due to the COVID 19 pandemic and school closures?
The U.S. Department of Education has not provided any guidance regarding how to calculate COVID-19 compensatory services. The following is a list of information the IEP team may want to consider in determining whether and to what extent a student needs compensatory services.
This list is not exhaustive, and it is important to remember each determination needs to be made on an individual, case-by-case basis:
If a student’s IEP team determines the student needs COVID-19 compensatory services, where is that documented?
COVID-19 compensatory services should not be included in the IEP as special education services, because they are additional services beyond what is provided in the IEP for FAPE. COVID-19 compensatory services could be documented in the notes section of the IEP or a separate document that sets out the terms of the compensatory services. At a minimum, parents should be provided a PWN that documents the offer of compensatory services.
Are COVID-19 compensatory services required for a student who aged out or graduated at the end of the 2019-2020 school year?
Maybe. It is up to the IEP team to determine if compensatory services are needed for a student who aged out or even graduated at the end of the 2019-2020 school year. If the IEP team determines COVID-19 compensatory services are necessary, it is up to the IEP team to determine how those services should be delivered.
 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)
 Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak (U.S. Dept. of Ed. March 2020)
 Questions and Answers on Providing Services to Children with Disabilities During the 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 (US. Dept. of Ed. 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)
Please keep in mind this guidance may quickly become out of date, given the rapid changes occurring during the COVID-19 pandemic. This guidance does not constitute legal advice or create additional laws or requirements. Local Educational Agencies (LEAs) are always encouraged to consult with their legal counsel when deciding how to proceed in a specific factual scenario.
If masks are required of students in school, what should be considered for students with disabilities?
Students protected under the ADA and IDEA have additional protections regarding access to education. If a student’s IEP team determines the student is unable to wear a mask due to his or her disability, the IEP must be reviewed to ensure the student has access to instruction as set out in the IEP and what accommodations are necessary to satisfy the mask requirement.
The school district cannot unilaterally change the student’s placement, if the IEP team determines the student cannot wear a mask due to a disability.
If a student is placed in remote learning solely because of his or her inability to wear a mask in school, the student has a skill deficit that is prohibiting him or her from accessing the regular education environment. Therefore, the student’s IEP must include a measurable annual goal and data collection methods to teach the skill of wearing a mask. (34 CFR. 300.320(a)(2)(i); 34 CFR 300.114(a)(2)). Examples of how to teach the skill of wearing a mask can be found on the Montana Autism Project Blog.
Examples of accommodations, though not an exhaustive list, could include:
OPI’s resource on Mask Wearing Resources.
Offer comparable activities as soon as circumstances allow. The requirement to conduct Child Find has not been waived due to the COVID-19 pandemic. This upcoming 2021-2022 school year, school districts may need to evaluate whether their current Child Find procedures are sufficient to ensure appropriate referral and evaluation of students who may have a disability under IDEA. Many students unenrolled from schools during the pandemic and possibility received instruction only virtually. Districts may need to consider conducting additional screenings of students whose academic and behavioral needs may require evaluation to determine eligibility under IDEA. For additional information on Child Find requirements and considerations related to the COVID-19 pandemic, please see OSEP and OSERS Return to School Roadmap: Child Find Under Part B of the IDEA (August 24, 2021).
If a student has contracted long COVID-19 or other post-COVID conditions and the symptoms are adversely impacting the student’s ability to participate and learn the general education curriculum, should they be referred for special education?
Yes. If a student experiencing symptoms of long COVID is suspected of having a disability (ie. other health impairment) and needs special education and related services, the student must be referred for an initial evaluation. See Question C-4 OSEP and OSERS Return to School Roadmap: Child Find Under Part B of the IDEA (August 24, 2021) and OCR and OSER Long COVID under Section 504 and the IDEA: A Resource to Support Children, Students, Educators, Schools, Service Providers, and Families (July 26, 2021).
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:
Can parents and districts agree to continue the 60-day timeframe for an initial evaluation?
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:
Graduation and Credit Requirements
*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).
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.
Can special education and related services be provided through on-line programs or other remote technology?
The provision of special education and related services through remote technology must comply with the licensure/certification standards of each profession, as well as applicable state or federal laws, and professional practice standards. Providers should seek guidance through their respective professional licensing organizations.
Speech and Language Pathologists and audiologists (Licensed by Board of Speech and Language Pathologists, Labor and Industry http://boards.bsd.dli.mt.gov/slp)
Telepractice is expressly allowed for speech and language pathologists and audiologists: see ARM 24.222.901 et. Seq.
Montana association – Montana Speech Language Hearing Association
National association – American Speech Language Hearing Association
Physical Therapy (Licenses by Board of Physical Therapy, Labor and Industry http://boards.bsd.dli.mt.gov/ptp):
Telemedicine is expressly allowed under Montana law. See MCA 37-11-101(7).
Montana association – APTA of Montana: https://www.mapta.com/
National association – American Physical Therapy Association
Occupational Therapy (Licensed by Board of Occupational Therapy Practice, Labor and Industry http://boards.bsd.dli.mt.gov/otp ):
The Board of Occupational Therapy, Practice, Labor and Industry’s statement on telehealth/telepractice: https://boards.bsd.dli.mt.gov/_docs/otp/telehealth.pdf
Montana Association- Montana Occupational Therapy Association (MOTA): MOTA website [458rl1jp.r.us-east-1.awstrack.me]
National association - American Occupational Therapy Association (AOTA): https://www.aota.org/Practice/Manage/telehealth/coronavirus.aspx
Licensed Clinical Social Workers (Licensed by the Board of Behavioral Health, Department of Labor and Industry http://boards.bsd.dli.mt.gov/bbh)
They have information regarding COVID-19 here: http://boards.bsd.dli.mt.gov/Portals/133/Documents/bbh/BBH_FAQ-COVID-19.pdf?ver=2020-03-17-144545-230
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 services 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 services are 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 services. 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 services are necessary.
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.
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.
Supporting Students with IEP’s During eLearning Days
FERPA and Virtual Learning during COVID-19 (Webinar Recording)
Montana Effective Practices Matrix
Mask Wearing Resources
Decision Tree – Continuous Learning for Students with Disabilities During COVID-19 Health and Safety Restrictions
When reopening school buildings after extended closures due to the COVID-19 pandemic, Montana school districts will need to give consideration to special education programs and supporting students with disabilities. The following is a list of things for school districts to consider with regard to special education as they plan for reopening:
Maryland Together: Maryland’s Recovery Plan for Education http://marylandpublicschools.org/newsroom/Documents/MSDERecoveryPlan.pdf
Checklist of steps districts should take before schools reopen to students with disabilities, LRP 2020
In the unique and ever-changing environment created by COVID-19, the U.S. Department of Education has recognized that exceptional circumstances may affect how special education services are provided and that during the national emergency, schools may not be able to provide all services as they are typically provided. Per state and federal guidance and the implementing regulations, local educational agencies (LEAs) are required to provide equitable access to general education opportunities and are to continue to provide a free and appropriate education (FAPE) to students with disabilities to the maximum extent possible.
The IDEA places great emphasis on ensuring children with disabilities have access to the general curriculum. As IEP teams and families navigate special education services during the COVID-19 pandemic, it is important to keep in mind what special education is and its purpose. “Special education” means specially designed instruction, provided at no cost to parents, to meet the unique needs of a child with a disability, including instruction conducted in the classroom, in the home, hospitals, institutions, and other settings. “Specially designed instruction” means adapting, as appropriate to the needs of an eligible child, the content, methodology, or delivery of instruction- (i) To address the unique needs of the child that result from the child’s disability; and (ii) To ensure access of the child to the general curriculum, so the child can meet the education standards that apply to all children.
Ensuring students with disabilities have access to the general curriculum is also one of the requirements for developing a child’s IEP. The IEP must include a statement of how a child’s disability affects involvement and progress in the general curriculum. The IEP goals must be designed to enable a child to be involved in and make progress in the general curriculum. The IEP must include a statement of the special education and related services a child will need and program modifications and supports for school personnel that will be provided in order to enable the child to be involved in and make progress in the general education curriculum.
The COVID-19 pandemic has not changed what is considered special education. The IEP teams will need to consider any changes that have been made to the general education curriculum in light of COVID-19.
As the COVID-19 pandemic continues into another school year, parents, educators and administrators need to work together to meet the needs of students with disabilities as the general education environment continues to change in response to the COVID-19 pandemic. Schools and IEP teams will need to be flexible in how special education services are provided, due to health and safety restrictions outside of the LEA’s control. As restrictions are eased or increased, the ability to provide special education services may also vary. In order to plan for the potentially fluctuating changes to the general education environment, IEP teams may consider including in the IEP a pivot plan, outlining what special education services will look like under various delivery models.
For example, the IEP could be written for the traditional setting (or the setting the student will participate in if there were not health and safety restrictions in place). For most students, this would be full time, in person learning. Many LEAs have outlined different phases to reopening, based on health and safety restrictions that are in place and whether or not they are able to allow in person learning. For instance, there could be a remote learning phase, where all learning is done remotely. There could also be a hybrid phase, where students are engaged in both in person and remote learning different days of the week. The contingency or pivot plan would then describe how the student’s special education and related services would change based on what phase the LEA is in. The use of a pivot plan would allow IEP teams to plan and be prepared to provide FAPE throughout the different phases.
The idea of a pivot plan is not new. The U.S. Department of Education addressed the use of contingency plans in guidance issued last spring, stating contingency plans may be used, but are not required in order to allow parents and service providers an opportunity to agree on what would trigger the use of a distance learning plan and agree on what services would be provided during the school closure. A pivot plan is the same idea. It gives parent and LEAs the opportunity to prepare for and then “pivot” between the different phases as necessary.
If used, the pivot plan may include (this list is not exhaustive):
If used, the pivot plan is a part of the student’s IEP and should be referenced in the Notes section. A pivot plan may be included through an amendment to the IEP or drafting a new IEP.
The Montana Office of Public Instruction (OPI) offers the use of a pivot plan as one option for LEAs to use to respond to the changing educational environment and to assist LEAs in fulfilling their obligation to provide a FAPE to students with disabilities. This guidance does not create any new legal requirements and does not substitute for legal advice. LEAs are always encouraged to consult with their legal counsel when deciding how to proceed in a specific factual scenario. This guidance will be updated as necessary.
The OPI has provided an example of what a pivot plan may look like for instructional purposes.
 U.S. Dept. of Educ. Discussion of the Federal Regulations, 71 Fed. Reg. 46577 (August 14, 2006).
 34 CFR 300.39(a)(1); See also MCA 20-7-401(4) defining special education.
 34 CFR 300.39(b)(3).
 U.S. Dept. of Educ. Discussion of the Federal Regulations, 71 Fed. Reg. 46577 (August 14, 2006).
 Questions and Answers on Providing Services to Children With Disabilities During the Coronavirus Disease 2019 Outbreak (U.S. Dept. of Ed. March 2020) see Question A-5.
CASE Sample e-learning Service Log
Documenting Due Diligence
Terminology for Instruction During COVID-19
A Parent’s Guide to Virtual Learning
Highlighting Strategies and Practices in Providing Related Services to Enhance the Continuity of Learning During COVID-19 for Children with Disabilities
OPI Student Well Being
OPI Hub Course for Paraprofessionals
Facilitated Course Calendar
Wide Open School
Virtual Field Trip Options
Access and Accessibility of On-Line and Virtual Learning Tools
Professional Learning Resources-Common Sense
Highlighting Resources for Teachers and Parents to Enhance the Continuity of Learning During COVID-19 for Children with Disabilities
OSEP Continuity of Learning
National Center on Accessible Educational Materials
NCSI COVID-19 Resource Library
Kansas DOE Distance Learning Resources for Special Education