AASA Memo on New OSERS Guidance

October 5, 2021

Last week, the U.S. Department of Education (Department), Office of Special Education and Rehabilitative Services (OSERS) released a major new guidance document clarifying that, regardless of the COVID-19 pandemic, or the mode of instruction, children with disabilities are entitled to FAPE. OSERS has sought to clarify and re-interpret IDEA in some unique ways in this guidance document and superintendents should read the guidance as well as this AASA memo below closely.

First, the Department recommends that IEP Teams utilize contingency planning to ensure that regardless of whether a child is educated in-person, remotely or via hybrid that the IEP outlines can how the special education and related services included in a child’s IEP can be provided in changing circumstances.

Second, the Department cautions schools to avoid routinely using discipline to address a child’s behaviors that may arise when students return to school and consider developing or revising, or ensuring the provision of, positive behavioral interventions and supports and other strategies, as appropriate. The Department also gives examples of social, emotional, behavioral, and mental health supports related to the COVID-19 pandemic that could be included in a child’s IEP. The guidance also describes the steps the IEP Team should take when considering behavioral supports for children with disabilities as they return to in-person instruction. Specifically, if new or different social, emotional, behavioral, or mental health needs arise after a child has been determined to be eligible for special education and related services and an IEP has been developed, the IEP Team must reconvene to consider these needs, including whether there is a need for additional related services and positive behavioral interventions and supports to ensure the child’s access to FAPE.

Third, the guidance outlines who should be included on a child’s IEP Team when a child with a disability has one or more underlying medical conditions that puts them at increased risk of severe illness if they contract COVID-19. Further, they reaffirm that LEAs must address the school-related health needs of eligible children with disabilities who are at increased risk of severe illness from COVID-19 infection. Specifically, if a parent or other member of the IEP Team believes that COVID-19 prevention strategies are necessary for the provision of FAPE to the child, the IEP Team must consider whether and to what extent such measures are necessary, based on child-specific information, which may include medical or health records, diagnostic or other evaluative data, or information documented by medical or health professionals. In a direct rebuttal to states that have limited masking or other COVID mitigation strategies, the Department reaffirms that “state or local laws, rules, regulations, or policies that have the effect of improperly limiting the ability of the IEP Team to address the school-related health needs of a child with a disability, or the ability of the group of knowledgeable persons to propose an appropriate placement in the least restrictive environment for children with disabilities who have school-related health needs, would be a violation of IDEA.”

Fourth, when it comes to determining extended school year services, the Department does explicitly permit the IEP Team to determine that a child’s ESY service needs could be met through participation, with appropriate supports, in some or all of the additional services the LEA provides to all students.

Fifth, the Department also answers whether an LEA is obligated to provide special education and related services through virtual instruction upon the parent’s request. They note that if virtual is provided to all students than students with disabilities must also be given this option, but that IDEA also includes a “home instruction” provision in the continuum of alternative placements an LEA must make available to ensure FAPE is available to children with disabilities, which could mean virtual/hybrid.

The final and most troubling section of the guidance focuses on learning loss during the pandemic and associated revisions to the IEP as well as a need to provide compensatory services for students who have been denied FAPE. The Department clarifies that the IEP team should discuss what new or different needs a child has including lost skills or lack of progress towards attaining IEP goals and all areas of need, whether or not commonly related to the child’s disability category. However, it then proceeds to recommend that IEP teams convene to determine what “compensatory educational services” should be provided to a child. This is a total misread of the provision of compensatory educational services. Since compensatory services were first outlined in IDEA regulation, they have strictly been a legal remedy that Courts have ordered to address a student’s needs after the district’s failure or inability to provide FAPE over a given period of time. In this guidance, the Department suggests that any district can and should consider what compensatory services a child is owed and outlines a step-by-step process for IEP teams to determine whether a child should be given compensatory services that includes the child’s present level of academic achievement, the child’s previous rate of progress towards IEP goals and the documented frequency and duration of special education services provided prior to the pandemic.

The guidance also states that the Department’s longstanding position has been that IEP Teams are the appropriate vehicle for addressing the need for, and extent of, compensatory services to address the child’s needs based on any failure or inability to provide appropriate services due to circumstances such as teacher strikes, natural disasters, and pandemics. And the Department believes that IEP Teams are already empowered under IDEA to make individualized determinations regarding the special education and related services that a child needs. AASA takes great issue with this interpretation and disagrees that there is no statutory or regulatory evidence to account for this view.

Furthermore, the Department cautions that any attempts by districts and states to provide “recovery services” or “COVID mitigation services” would not be considered “compensatory services” as defined by the Department unless they utilize a process “identified under IDEA for making individualized determinations about these services based on each child’s unique needs and circumstances.” Therefore, efforts to provide recovery services to all students, including students with disabilities, would not suffice. The Department also says that students who have graduated or who have exceeded the age of eligibility for IDEA services can also be granted compensatory services. This is yet another interpretation of IDEA with which AASA disagrees.