By Julia H Sullivan, Esq. and Erin O. Roma, MSW
On Wednesday, July 29, 2020 the Savannah Chatham County School Board held a “Return to Learn Virtual Board Meeting” to discuss plans for the upcoming school year.
A portion of the meeting was spent addressing plans for Special Education (students with IEPs) and for students who receive protections under Section 504 of the Rehabilitation Act of 1973 (students with 504 plans). This is a response to the information publicly received and statements made regarding plans for Special Education during periods of distance/virtual learning.
If you would like to watch the whole meeting, it is available here: https://www.youtube.com/watch?v=33UUwLkELtQ&t=2170s.
1. Distance Learning Plans
This strategy is being used by many districts and being endorsed by the Georgia Department of Education (link to GaDOE guidance). In the meeting, SCCPSS stated their commitment to protecting the health, safety, and welfare of students and staff, providing students with a free appropriate public education (FAPE), and collaborating with families to provide support and accommodations.
Parents: FAPE stands for a Free, Appropriate, Public Education. FAPE is defined in the Individuals with Disabilities Education Act (IDEA), with expectations further described in important court decisions, like the 2017 Supreme Court decision known as the “Endrew F.” Case.
One important component of FAPE is that special education and related services be provided in conformity with an individual education (IEP) program. If you have an IEP that the team has already agreed upon, that is your child’s offer of FAPE by the district.
We currently believe that a Distance Learning Plan is, at most, an amendment or addition to a student’s IEP. It is not a replacement for the IEP. A Distance Learning Plan does not replace the IEP.
The Georgia Department of Education (GaDOE) defines Distance Learning Plans as “contingency plans used to document temporary provision of special education services provided during a time of selective or required school closures … that may include special education services and related services using options such as online or virtual instruction, instructional telephone calls , and other curriculum-based instructional activities.”
The GaDOE also states that Distance Learning Plans “are included with the IEP and used to describe any necessary changes or amendments to the IEP based on the use of an alternative instructional model.” For our purposes, SCCPSS is starting the year virtually, which means that we are using an alternative instructional model.
A Distance Learning Plan should be a workable plan that is comparable to a student’s current IEP. This plan should be creative in the face of virtual/distance learning and continue to provide a FAPE.
If you would like to learn more about our thoughts on Distance Learning Plans, this link speaks directly to the guidance The Sullivan Law firm released on July 13, 2020: https://www.jhsullivanlawfirm.com/post/what-exactly-is-an-individualized-distance-learning-plan.
2. Creating a Distance Learning Plan
The District stated that all families with students who have IEPs or are protected under Section 504 of the Rehabilitation Act will be contacted during pre-planning (August 3rd-August 18th) to create a Distance Learning Plan. The Distance Learning Plan will be in place within the first 30 days of school, and the plan will be closely monitored.
We expect that the first communication parents receive will be to set up a meeting to discuss the Distance Learning Plan; not that the Distance Learning Plan will be created during this first conversation.
It is unclear who will be contacting parents to create the Distance Learning Plan — a student’s Case Manager, general education teacher, special education teacher, service provider, someone else? For purposes of this guidance, we are going to refer to that person as “teacher.”
Some other questions we have are:
Will the Distance Learning Plan be created solely by the teacher?
Will the Distance Learning Plan be created by the teacher and the parent together?
Will the Distance Learning Plan be created by the student’s IEP team?
Will the teacher be asking question such as:
Does the student have access to the internet? Is it a quality connection?
Does the student have access to the technology necessary to access their Distance Learning Plan?
What else needs to be in the home in the form of accommodations, assistive technology, and modifications that are the same or similar to what the student would receive if they were in their classroom?
Is the student able to access learning packets or other written materials? Do they need to be modified in light of the child’s IEP?
Who will be available to assist the student?
Is there anything else that should be taken into consideration?
We are hopeful that the District will not use unilaterally created Distance Learning Plans. Since IEPs and 504 Plans must be individualized, teachers and parents (at a minimum) should be working together to create these plans.
Again, the GaDOE supports this idea by stating that Distance Learning Plans “are not separate from the IEP and should be developed using the IEP process.”
Parents: Know your rights regarding this meeting and the District’s obligations to you when creating your child’s Distance Learning Plan.
First, amendments to an IEP are allowed only after the annual IEP meeting for the school year is in place. If a student is due for their annual IEP meeting, an amendment should not take place until the annual meeting happens and the student’s IEP for the school year is determined (20 U.S.C. § 1414(D)).
Second, if the parent and teacher agree that a meeting of the full IEP team is not needed to create the Distance Learning Plan, that is permitted under the law, but only if the annual IEP is already in place (20 U.S.C. § 1414(F)). A parent does not have to agree to create a Distance Learning Plan solely with the student’s teacher.
We recommend, if you agree to create the Distance Learning Plan without your child’s IEP team, that you document that decision in writing (preferably via email).
Third, parents do not have to agree to create the Distance Learning Plan without the student’s IEP team. Parents can and should request a full IEP meeting if that is their preference.
Fourth, since the Distance Learning Plan is being developed under the IDEA (or Section 504) all notice and procedural safeguards should apply. In other words, all of your parental rights remain intact.
Finally, regardless of the option that works best for your family, remember to request a written copy of the Distance Learning Plan and any IEP revisions or amendments.
3. Service Delivery
The District stated that they will not be providing face-to-face services while virtual learning is in place. It was communicated that a 9am-5pm “hotline” will be available, and an email address (email@example.com) will be established for questions. There will also be consultation request forms if families need support of behavior and academic related concerns.
Parents: This is a tough one. Safety remains a priority for everyone, but some students are not going to be able to benefit from a FAPE if they do not receive face-to-face instruction or services.
If you are concerned about whether the District can or is providing your student with a FAPE, we suggest that you reach out to an advocate or a lawyer who works in special education to discuss your individual situation.
The District stated that it has opened up particular spaces for safe evaluations to occur.
Parents: As of writing this guidance, there is no COVID-19 pandemic or emergency exception to the timelines under the IDEA or Georgia state regulations.
Familiarize yourself with procedures in Georgia that lay out timelines for the completion of an evaluation here: https://www.gadoe.org/Curriculum-Instruction-and-Assessment/Special-Education-Services/Documents/Implementation%20Manual%202018-19/Evaluation%20and%20Reevaluation%20Implementation%20Manual.pdf
To learn more about the GaDOE’s interpretation of these regulations, read this guidance regarding school closures: https://www.gadoe.org/School-Improvement/Federal-Programs/Pages/Individual-with-Disabilities-Education-Act.aspx
We believe that when a District uses virtual/distance learning as an instructional model, those days count as school days under the Georgia state regulations. The expectation of teaching and learning on these school days applies equally, and timelines encoded in the IDEA apply as well.
5. The Special Education Work Group.
The District stated that a workgroup, which will meet over the course of the year, has been established to consider the implications of students with disabilities.
Following months of creative planning for traditional learners, we are encouraged that the District has now decided to apply that same ingenuity towards students with disabilities. Some questions that remain:
● What is the objective?
● Who are the participants?
● Are parents of students with disabilities included?
● Most importantly, are students with disabilities included?
As the Special Education Work Group takes form, we will continue to monitor its work.
As we embark on the 2020-2021 school year, there seem to be more questions than answers. We will continue to do what we can to provide information and reasoned responses that help our community discuss special education in the time of COVID. This is and will continue to be a developing situation, as many prior public health crises impacting education occurred before the IDEA, Section 504 or the ADA were in existence. Students with disabilities and their families must have a seat at the table during these difficult times. We will continue to advocate for their needs and promote the expectation of inclusion throughout the discussions and planning.
* Julia H. Sullivan is an attorney based in Savannah, Georgia at The Sullivan Law Firm, who works with and provides legal representation to families of students with IEPS and/or 504 plans.
* Erin Roma is a non-attorney Special Education Advocate at The Sullivan Law Firm.
This statement does not constitute legal advice and may not be relied upon by anyone for any purpose and does not constitute an attorney/client relationship or an offer to form such a relationship. This statement is in the form of legal education and is intended to provide general information.
 https://www.gadoe.org/External-Affairs-and-Policy/communications/Documents/Special%20Education%20Restart%20Guidance%20(7-30-2020).pdf (last visited, August 1, 2020)  Id.  Id.