This article was published on Education Dive by Kara Arundel on October 6, 2020.

When schools closed to in-person learning in the spring, some individualized supports for students with disabilities were easily transitioned to remote or virtual learning. But other services were harder to adapt to new learning formats due to the specific interventions that require physical or behavioral supports and other intensive services.

To help all students with disabilities, schools are looking at the most important document in special education and a requirement under the federal Individuals with Disabilities Education Act (IDEA) — a student’s individualized education program (IEP). These documents are being scrutinized and, in many cases, altered or expanded in order to reflect pandemic realities of how best to replicate in-person services to full or hybrid virtual learning approaches.

IEP reviews ensure students with disabilities receive the services they are legally entitled to even during this public health crisis, but it’s also an undertaking that is daunting and difficult, say special education leaders.

Phyllis Wolfram, executive director of the Council of Administrators of Special Education (CASE), which represents district-level special education directors across the country, said a lot of thought and time go into the IEP development for each qualified student. 

Each IEP meeting requires a minimum of one or two hours of preparation by the special education teacher to review the current plan’s services and goals, get input from the student’s other teachers, and analyze the student’s present levels of performance in order to propose changes to their plan. Changes to plans, however, are a team decision with parents included in that process.

“Teachers could virtually spend the first month of school doing paperwork,” Wolfram said. “That means they have less time with students.”

Schools are eager for guidance on best practice approaches for IEP adjustments during the pandemic. Although the U.S. Department of Education has issued several guidance documents about the obligations of schools to serve students with disabilities in whatever learning format is available, Secretary Betsy DeVos has declined to recommend that Congress allow waivers to IEP timeline requirements set by IDEA. 

State guidance varies

Some state education departments have provided very little guidance as to a change in approach to IEPs due to school closures, while some state school departments or governments give very explicit instructions. 

For example, Washington state’s Office of Superintendent of Public Instruction said it is the discretion of each IEP team to create a new IEP or amend a student’s program to reflect changes in services if there are unplanned, temporary school closures. In states without specific guidance, local approaches can vary from district to district. 

In contrast, the California 2020 Budget Act set a new requirement that IEP teams detail how individual student instruction and special education services will be provided if a school building is closed for more than 10 days. In New Hampshire, an emergency order from Gov. Christopher Sununu requires schools to hold an IEP meeting for every qualifying student within the first 30 days of the 2020-21 school year. At those meetings, IEP teams must determine additional services students may need due to missed services or a student’s regression of skills.

Erin Maguire, director of equity, diversity and inclusion in the Office of Student Support Services at the Essex Westford School District in Essex Junction, Vermont, said she followed her state guidance to create, by Sept. 15, individual service pages to add to each IEP detailing how her district’s 600 students with disabilities would be served in three learning formats: in-person, hybrid and remote. 

Maguire, who also serves as president of CASE, said the most difficult part was determining how to provide general education and special education services for certain students with disabilities if the entire school district needs to switch to remote learning. The school system is currently operating under a hybrid model.

“What does the service page look like for kids who are unable to — due to their disability — access remote learning?” Maguire said. “This is the space where safety bumps up against special education, and a place where I would say IDEA and case law do not contemplate this issue yet.” 

Maguire added, “From my perspective, it’s this space of impossibility and no one has provided any guidance on it except the [state education agencies], which are all over the place related to their recommendations on this in a situation where students cannot safely come to school but need in-person services.”

Ongoing concerns

While many view IEP amendments to be an effective and legally compliant approach to documenting how special education services could be altered during distance and hybrid learning formats, some parents and disability rights advocates have raised concerns that pandemic-related amendments could be viewed as an attempt to reduce services or circumvent the IEP team decision-making process.

In fact, the New Jersey Department of Education issued a memo in April clarifying districts cannot require parents to waive certain special education rights in order to receive services during distance learning after questionable language was included in some districts’ IEPs.

Courtney Pugh, a consultant with 4 PEAKS Educational Consulting, LLC in Virginia, who helps parents work with districts to access special education services for their children, grew alarmed this summer when she saw language added to IEPs that seemed to limit the circumstances for when students with disabilities would receive services. 

Specifically, the additional language indicates special education services would not be available during partial school weeks. However, it is unclear to her and others if partial weeks include school days when asynchronous learning is taking place. 

“This is very unchartered territory. I’ve seen issues with IEPs before, but never to this magnitude.”

Courtney Pugh

Virginia special education advocate

She recommended parents add a note at the end of the document stating the parent doesn’t agree to waive any rights under IDEA or Section 504, including their rights to a “free appropriate public education” for their children.

The new language districts are adding to IEP documents “could be fine or could lead to big problems,” Pugh said. “I want a child to get what they need in whatever format they can get it.”

Pugh added some students with disabilities are thriving in distance learning situations, but others need to be back to in-person full time instruction with all their supports and services in order to prevent regression. It’s those students whose services don’t translate to remote learning, and where remote learning is the only option, who concern her the most.

“School teams are agreeing with parents, but their hands are tied,” Pugh said. “This is very unchartered territory. I’ve seen issues with IEPs before, but never to this magnitude.”

Calls for more federal guidance

Many examples of strong school-family collaborations and innovative service approaches have emerged during the pandemic, but more federal guidance is needed to address the ongoing IEP challenges, said Wolfram, Maguire, Pugh and others.

“On that paper is a child, and the impact is on the child,” Pugh said.

The Ed Department’s Office of Special Education and Rehabilitative Services (OSERS) has issued several special education-related guidance this year emphasizing the requirements to continue special education services based on individual student needs even if that child is learning remotely. 

The most recent guidance, a Q&A issued Sept. 28, also reiterated schools may make amendments to an IEP so long as those efforts don’t replace the annual IEP meeting, and that parents must be notified of the changes, as required by IDEA.

Additionally, the department, which monitors compliance with IDEA, issued a supplemental fact sheet in March stressing the special education services outlined in each student’s IEP must continue either in-person or remotely, adding “many disability-related modifications and services may be effectively provided online.” 

Parents and districts, however, say the harder-to-address problems lie in the cases where equitable services cannot be provided remotely, where in-person learning is not an option, and when families choose to have their child learn remotely even when there’s an in-person learning option. OSERS-funded technical assistance centers have been working to issue resources on best practices that address these concerns.

Educators also say they need relief from IEP timeline requirements that were developed without a pandemic in mind. “Directors across the nation are struggling with additional paperwork due to the lack of guidance from the education department on the flexibilities in IDEA,” CASE’s Wolfram said. “They have to keep the lid on the boiling pot.”