In our most recent article, Recommendations on Distance Learning During the 2020-2021 School Year, we recommend that students with Individualized Education Plans (IEPs) or 504 plans develop Individualized Distance Learning Plans to accompany existing IEPs or 504 plans.
Developing Individualized Distance Learning Plans is vital whether your district is starting off the year with distance learning for all students, offering “optional” distance learning, or if your child is attending in-person classes. It is highly likely that schools will end up shutting down for either all or a portion of the 2020-2021 school year due to the COVID-19 pandemic.
Defining Individualized Distance Learning Plan
It is important to understand what an Individualized Distance Learning Plan is and what it is not.
To make the Individualized Distance Learning Plan viable, it should meet certain criteria:
It must be developed at the IEP table with all members of your child’s IEP team (or similarly your child’s 504 team)
It is a plan that is incorporated into your child’s existing IEP or 504 plan.
It is a detailed outline of exactly how the school is going to mirror your child’s IEP or 504 plan in a virtual or non-traditional setting.
For example, if your child receives 1 hour of speech services, 30 minutes of counseling, or 3 hours of individualized instruction in reading per week under their existing IEP or 504 plan, the Individualized Distance Learning Plan needs to describe who will be providing those services or instruction, when they will be provided, and how the services or instruction will be delivered.
It discusses how the school is going to measure progress and take data on that progress.
Remember: establishing baselines is key to charting meaningful data.
It will provide guidance on maintaining accommodations and modifications in the distance learning setting.
For example, if your child is using a “check in, check out” system to work on executive functioning skills, the Individualized Distance Learning Plan should incorporate a “check in, check out” system that works in the distance learning context.
What is not an Individualized Distance Learning Plan:
A plan developed for all distance learners, whether developed for all students enrolled in the district or all students with IEPs or 504 plans.
A plan developed outside the IEP/504 process.
A plan that is not included in and with your child’s IEP.
A plan that makes a distinction between your child’s individualized instruction, related services, or accommodations and modifications depending on whether it is “choice” virtual learning (during a period when the district is offering the option of in-person or distance learning, but still maintaining “in-person” classes at the school) or required distance learning due to district-wide or school-specific closures.
A plan that waters down or reduces the type, amount, and nature of the individualized instruction or related services your child would otherwise receive under their pre-distance learning IEP.
What Should You Do If Your Child Is Not Being Offered An Individualized Distance Learning Plan?
First, you need to contact your school immediately and request an IEP or 504 team meeting.
If you are told that you must make a choice between in-person and distance learning before the IEP/504 team meeting, you should respond in writing with your concerns about being asked to make that decision prior to the IEP/504 meeting.
Here is some sample language you may consider using in your communication with your district:
I am in receipt of the school district’s request that students make a choice for fall instruction between in person instruction and virtual instruction. My child has an IEP and the LEA has not provided enough information for me to make this decision. I would like to have an IEP meeting prior to the decision-making deadline to discuss the instructional options for my student. **
The district may or may not honor your request for an IEP or 504 meeting, but you will have documented that refusal if they do not.
If the district refuses to give you a meeting prior to the decision-making deadline, you can ask for clarification on deadlines to opt in and opt out of the instructional model you choose prior to the IEP or 504 meeting. You are likely to be told that you will be “locked into” your first choice for a period of time. Some districts are offering space for parents to opt in or opt out of their earlier chosen instructional model at various points during the fall semester. This is similar to what you see with open enrollment periods with insurance. Others districts have been reticent to offer opt in and opt out opportunities during the fall semester. Others are starting the school year with district-wide distance learning. Unfortunately, at this time, there is no one state-wide process. Each district is handling these issues and questions differently.
If a district requires you to make a choice without the IEP or 504 meeting, this is problematic, especially for students with IEPs. It will be important to document all of your communication with your district. If your child is not making progress or is having difficulty accessing the instructional model you choose, you should be allowed to switch.
Even if you choose distance learning, the district is required to provide your child with a free appropriate public education (FAPE).
Some districts appear to be drawing a distinction in their obligations to provide a FAPE between “optional” distance learning and in-person instruction in the classroom setting. If you have a thoughtful, meaningful Individualized Distance Learning Plan as part of your child’s IEP, there is no reason that you could not have simultaneous distance and in-person learning depending on what is appropriate for your child.
The district should not be asking you to waive your child’s right to a FAPE or to agree that the Individualized Distance Learning Plan provides FAPE. It is inappropriate for the district to ask you to make these decisions. Whether the distance learning plan is appropriate or will permit your student to make progress remains to be seen. This is no different than how you would approach your pre-distance learning IEP.
Do not for any reason or under any circumstances waive your child’s right to a FAPE now or compensatory education in the future. (To learn more about compensatory education, you can review the guidance provided by COPAA – Council of Parents, Attorneys & Advocates, available at https://cdn.ymaws.com/www.copaa.org/resource/resmgr/docs/2020_docs/copaa_statement_on_compensat.pdf). If you are unsure about whether you have waived or are being asked to waive FAPE or compensatory education, you should immediately seek legal advice and counsel.
Second, once you have the IEP or 504 team meeting, if the district attempts to reduce instruction, services, or accommodations and modifications, you need to insist that your child’s IEP be implemented as originally written — preserving and maintaining the type, nature, and amount of instruction and/or services your child is receiving is key. Consider being flexible about how instruction and services may be delivered. If virtual delivery can convey meaningful benefit to your child, then give it serious consideration.
If the IEP offered REDUCES services from your child’s current IEP, you need to document that reduction.
Here is an example of a statement that you can read at the meeting and/or send it to the school after the meeting:
I do not believe the IEP offered on _____________, 2020 confers a FAPE upon my student. I do not waive any of my rights under IDEA or ADA, including but not limited to my child’s right to a Free Appropriate Public Education (FAPE), my right to challenge the sufficiency of the provision of a FAPE, or my right to pursue compensatory services by accepting the services offered at this time.**
Also, you should use that IEP meeting to develop an Individualized Distance Learning Plan that meets the criteria listed above. For possible questions you can ask or topics you can discuss at the meeting, please see our Recommendations on Distance Learning During the 2020-2021 School Year.
If you are having difficulty getting an IEP designed to provide your student with a meaningful plan that addresses the current situation, want assistance at an IEP meeting, or wish to discuss your child’s education program in general, you can reach The Sullivan Law Firm at (912)289-1081 or through our website: www.jhsullivanlawfirm.com. We may be able to help.
** Language courtesy of Lipson Advocacy: Educational Legal and Strategy Specialist, Sandra Riggs, Advocate and Educational Consultant, and The Law Office of Allison B. Vrolijk, Esq.
 SARS-CoV-2 is the virus that results in the disease we know as COVID-19.
 It is always a good idea to follow up any meeting with written correspondence. Creating a paper trail of the decisions made and discussions had is very important. You cannot trust that the notes incorporated into your child’s IEP by the school will fully document the meeting, especially with topics that are controversial, in dispute, or require the district to take a position that could result in later legal liability.
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.