To avoid predetermination, the IDEA effectively requires that school-based team members enter an IEP meeting with an open mind. It’s OK for team members to have opinions. But they need to be ready and willing to listen to and consider what the parent has to say about the child’s needs.

While no hearing officer or court can get inside an educator’s mind to see if they entered the room (or virtual meeting space) with an open or closed mind, hearing officers and courts can���and often do���make decisions about predetermination based on team members’ words and actions. The following points can help team members avoid such a result.

Refrain from demonstrating a closed mind

Educators should avoid doing or saying things either prior to or at the meeting that indicate a decision about a student’s IEP content or placement was set in concrete before the meeting started.

For example: An IEP team leader or other school-based team member may engage in predetermination by emailing another team member prior to the meeting that the district won’t provide more than 30 minutes of speech services and sticking to that limit regardless of the parent’s statements that the child requires more minutes to make progress.

Bringing a draft IEP that is not clearly marked “draft” and failing to explain that the document is just a starting point for discussion can give the parent the impression that her input doesn’t matter. In the mind of a hearing officer or judge, it can also raise a red flag that the district may have made up its mind before it entered the room.

Actively show you are willing to consider parental input

To avoid predetermination, or the appearance of predetermination, school-based team members should do more than refrain from speaking or acting in a way that suggests their minds were closed when they sat down at the table. They should also proactively do and say things designed to help parents participate and remain involved (this is even more important in virtual meetings, where it’s easier for a parent to disengage).

For example, to get the parent involved in an active, meaningful way, school team members, and in particular the team leader, should, at a minimum:

• Ask the parent questions.
• Respond to the parent’s input.
• Have someone take notes when the parent speaks.
• When appropriate, incorporate the parent’s input into the IEP.

Seemingly small actions such as placing the parent in a position where he can easily see and hear the other team members, especially the team leader, can also help show the school was going out of its way to include the parent.

Participation doesn’t mean you have to agree, though. School team members are not required to agree with the parent or change the IEP merely because the parent desires the change. The right to meaningful participation merely means that the team must listen to and consider parental input and, if appropriate, revise the IEP based on that information.

Joseph L. Pfrommer, Esq., covers special education legal issues for , a 91心頭 sister publication.油

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What is Child Find?

Child Find is an obligation the IDEA places on educational agencies to identify, locate, and evaluate students suspected of having a disability and needing special education and related services. Districts are responsible for identifying all IDEA-eligible students who reside in their jurisdiction.

Educators should keep in mind that child find:

• is an affirmative duty that cannot be delegated to parents
• applies even to students who are advancing from grade to grade
• applies to highly mobile children, including migrant children

What triggers Child Find?

The event that generally starts the IDEA evaluation process rolling is when a parent asks a teacher, school counselor or school administrator for an evaluation. But often, an educator, such as the child’s teacher, or an outside provider, will refer a student to be evaluated.

“Evaluation” is not a magic word

“Evaluation” is not a magic word that educators must wait to hear before they can or should make a referral.

Part of what makes the child find obligation an affirmative one is that it requires educators to take an active role in identifying students. A parent specifically requesting an IDEA evaluation is one event that can create the suspicion that the student may have a disability and need special education services.

But often, a parent won’t use the word “evaluation.”

Instead, the parent may say, for example, that she thinks her son is struggling academically because of long-term depression and anxiety. That could create suspicion that the child has an emotional disturbance. Or, she might explain that the student has poor grades because he can’t focus long enough to complete homework and has been medically diagnosed with ADHD���a statement that could indicate the student might qualify under the other health impairment category.

Educators should be on the lookout for red flags.

While educators should not wait around to hear a magic word, they shouldn’t necessarily be waiting for words at all. Rather, they should be on the lookout for circumstances or behavior that signals the need for an evaluation, even when no one has requested one.

These red flags might include:

• Dramatically declining grades
• Excessive absenteeism in tandem with a recent medical diagnosis
• Sudden withdrawal from peers in combination with declining school performance

Referral doesn’t automatically mean the child gets an IEP.

First, a referral for an evaluation does not always require a school to evaluate a student. Instead, the school can look at the information it has about the student, such as grades, the student’s social interactions and behavior, and other data, to determine whether there is in fact reason to suspect the student has a disability and needs specialized instruction. Whether the district decides to evaluate or declines to do so, it must explain its decision and the basis for that decision to the parent in a formal notice, usually referred to as prior written notice.

Second, after evaluating the student, a district could determine that the student is not, after all, IDEA-eligible, either because she does not have a disability or does not need special education. Again, regardless of whether the district finds the student eligible, it must send the parent PWN explaining its decision.

Once a district finds a student eligible, it must convene the IEP team to develop an IEP within 30 days. If the district has determined that the student is not IDEA-eligible, the district can consider referring the student for an evaluation under Section 504, which has different eligibility criteria.

Joseph L. Pfrommer, Esq., covers special education legal issues , a 91心頭 sister publication.

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檎顎鉛庄稼乙:油 A Florida circuit court declared that portions of an emergency order issued by the Florida Department of Education requiring school districts to reopen for in-person learning or risk loss of funding violated the state constitution. The circuit court held that the order was unconstitutional to the extent that it disregarded safety, denied local school boards authority to make reopening decisions, and conditioned funding on an approved reopening plan. However, the court held that the order would pass constitutional muster if its unconstitutional provisions were severed. It granted the Florida Education Association’s motion for a temporary injunction.

What it means: When drafting reopening orders during COVID-19, educational agencies in Florida should allow for local conditions, including local transmission rates, to be incorporated into the decision-making process. When that’s not done, the order stands a chance of violating state constitutional prohibitions against arbitrary action. One of the flaws in Florida’s emergency reopening order, according to a state circuit court, was that it appeared not to consider the fact that transmission rates, and thus the risks associated with in-person instruction, varied widely among districts. That helped convince the court that the order was being applied arbitrarily in violation of the state constitution.

Summary: A Florida circuit court found that an emergency order effectively mandating in-person instruction in all school districts was arbitrary and capricious and violated the state constitution’s requirement that schools operate safely. The circuit court held that the order was enforceable if the unconstitutional provisions, including language requiring schools to reopen for in-person learning for five days a week, were severed. The Florida Education Association, among other plaintiffs, requested a temporary injunction barring the Florida ED from enforcing the order, which conditioned funding on a district’s pledge to reopen for in-person learning. State Circuit Court Judge Charles Dodson explained that to obtain the injunction, the plaintiffs had to establish: 1) a substantial likelihood that they would succeed on the merits; 2) lack of an adequate remedy at law; 3) irreparable harm absent the injunction; and 4) that injunctive relief would serve the public interest. Addressing the “likelihood of success” element, Judge Dodson pointed out that the Florida Constitution requires schools to operate safely. But by tying a school’s continued funding to its agreement to reopen, the state ED “reduced the constitutional guarantee of a safe education to an empty promise,” Judge Dodson wrote. He also pointed out that the order, in essentially mandating schools to open for in-person learning, failed to weigh factors such as community transmission rates and varying ages of students. Thus, the plaintiffs demonstrated they were also likely to succeed in establishing that the order violates the Florida Constitution because it is being applied arbitrarily across the state, the court held. Next, the court found that, given the high risks associated with contracting and spreading COVID-19, the plaintiffs established irreparable harm. Finally, the court rejected the state ED’s argument that the plaintiffs had an adequate remedy at law based on their options of taking sick leave, retiring, filing worker’s compensation claims, or filing a grievance. Finally, an injunction would serve the public interest, the court stated. “Reasoned and data-driven decisions based on local conditions will minimize further community spread of COVID-19, severe illness, and possible death of children, teachers and school staff, their families, and the community at large,” Judge Dodson wrote. The court struck the unconstitutional provisions from the order and stated that retained jurisdiction to enforce the order. The Florida ED may appeal the order.

Joseph L. Pfrommer, Esq., covers education legal issues for a 91心頭 sister publication.油

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Jessica Dirsmith, a clinical assistant professor at Duquesne University, says that as the new school year approaches, educators should be preparing schoolwide practices and language to ensure all kids are safe. Those practices should include explicitly teaching what being safe looks like in all environments at school and using praise to enforce safe behavior. In addition, school leaders should develop a common language for educators to use when talking about safety, to facilitate understanding, and to ensure everyone is on the same page.

Educators should also understand that a child with a disability, particularly a student with a condition that significantly impacts behavior or cognition, may have far more difficulty than his nondisabled peers learning, remembering, utilizing and generalizing the new behaviors. “These children will likely need more instruction, practice, and praise for exhibiting the valued behavior. They may also initially need additional methods or strategies for learning,” Dirsmith says.

To help students with disabilities comply with COVID-19-related safety practices, educators should consider the following actions.

1. Utilize social stories, visual cues and extra instruction.

One step educators can take is to provide students social stories on wearing masks, washing hands and staying six feet apart from friends. In addition, visual schedules can help students to know when and how to wash their hands. Educators can also offer students with disabilities additional instruction identifying valued safety behaviors and how to engage in them. “Pair this with practice and praise, and the students may be far more likely to follow the rules,” Dirsmith says.

2. Identify and address the factors behind a student’s noncompliance.

Some educators might be tempted to respond to a student’s repeated safety rule violations by referring the child for discipline. But Dirsmith points out that if a student with a disability isn’t complying, “it is very likely that the student does not know or understand the rules or that there is a barrier that is contributing to noncompliance.”

She analogizes the situation to traveling to another country where you don’t understand the language and unspoken cultural codes. “As educators, it is our job to teach the student the needed skill and to not assume that they will inherently or immediately understand the expectation.” For example, Dirsmith explains, if a student is required to wear a face covering but cannot tolerate the sensation, there may be strategies that can be utilized to reduce the sensory reaction. “We may need to consult with our multidisciplinary teams including our school psychologists, behavior specialists, occupational therapist, parents, and outside health providers in order to develop a plan to address that specific need,” she says.

3. Replace behaviors that impede compliance.

When a student’s disability-related behavior is a barrier to compliance with safety practices, Dirsmith suggests identifying and teaching replacement behaviors that may serve the same function. For instance, the situation where a student who, because she has difficulty sustaining attention, tends to get up for multiple bathroom breaks. Educators could replace the behavior with a strategic brief walk outside with a staff member or another opportunity that would allow the child a movement break.

Just explaining to students with disabilities the seriousness of COVID-19 may not be helpful and could generate anxiety. Perhaps the focus should be on the outcome rather than the understanding, Dirsmith says. “Many children (and adults) may know that brushing their teeth prevents dental disease. However, that knowledge may not translate to brushing teeth every night and morning. They may be more likely to brush when they are both taught, have procedures and routines in place for brushing, and are reinforced for doing so.”

In short, she suggests that, rather than highlighting the danger of the virus, educators should focus on helping students with disabilities���through instruction, structured procedures and positive reinforcement���to make safe behavioral choices.

Joseph L. Pfrommer, Esq., covers special education legal issues for , a 91心頭 sister publication.

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Erin Gilsbach, executive director at , says schools should be proactively working this summer to identify students whose underlying medical conditions place them at risk. “While many concerned parents have already brought these issues to the schools’ attention, schools should not wait for a parent to raise the issue.”

Team considerations

IEP and Section 504 teams should reconvene to determine what accommodations a student may need to remain safe and whether the student may require an alternative placement, Gilsbach says.

– Know what general modifications will be made. To properly consider what accommodations a student needs, the IEP or Section 504 team must know what general modifications the school will be putting in place, so the team can make informed decisions about what additional steps are necessary.

– Include the student’s primary care physician (or medical specialist) in the discussion. Teams should be ready to succinctly describe to the student’s medical providers what modifications are being made to protect the general student population. Then, they should ask for specific recommendations as to what additional measures might be needed to keep the student safe, Gilsbach said.

– Identify students who cannot safely learn in school buildings. IEP and 504 teams must determine which students are at too great a risk regardless of what safeguards are in place. These students may need to continue learning online, but that decision must be made by the IEP team or 504 team on an individualized basis and with the benefit of appropriate data. “It is crucial that schools obtain this information from the student’s medical providers so that they can proceed with developing an alternative program in the home or in another appropriate setting,” Gilsbach says.

– Keep up with research. Schools will need to be vigilant about keeping up with current research on COVID-19, Gilsbach adds. “Some potential accommodations will depend upon emerging information about the virus (such as whether the use of classroom air filtration might be effective in reducing airborne virus particles).” As researchers have more time to study the virus, a better understanding will emerge as to how to effectively minimize the risks at school.

Programming considerations

Andrew Rudloff with Bishop Colvin Johnson & Kent, LLC in Birmingham, Ala., point out that developing and implementing programming for a student who is medically vulnerable is often difficult for an IEP team even outside of pandemic circumstances. The same considerations that applied pre-pandemic (e.g., decision-making driven by educational needs and abilities) should still apply. But now, Rudloff says, IEP teams may wish to give attention, or more attention, to:

• Medical information from the student’s private providers.
• School-based infection control precautions.
• Increased or altered cleaning regimens in school facilities (and the potential impact of those regimens on the student’s safety).
• Other supports that may be needed for educators or service providers to serve the student.
  “Of course, this will mean things like infection control precautions and cleaning regimens at the building level may need to be known and understood by at least one school representative on the team (e.g., the local education agency representative),” Rudloff says.

These considerations will dovetail in the team’s discussion and determination of the student’s least restrictive environment, as well as in what role, if any, continued virtual instruction should play in the provision of appropriate programming for the student, Rudloff says. “Regardless, the overarching end goal should still be the same: development and implementation of programming to enable meaningful benefit.”

Flexibility considerations

Director of Special Education Sarah Taylor at Forsyth County School System in Cumming, Ga., says her district is seeing a need to continue virtual teaching for some students, such as those with autoimmune conditions, during the 2020-21 school year. And, some parents are asking for these placements. Taylor advises that districts plan to address these issues and offer flexibility to meet individual student needs.

Another option may be to keep some students in small groups to reduce the risk of infection. In deciding how to protect a medically vulnerable student and whether the student can safely attend school, Taylor advises that IEP and 504 teams:

• Seek the input of the student’s medical provider to help determine the needed environment and supports.
• Discuss what realistically can and can’t be done in a school building to keep a student safe.
• Obtain the parent’s input.
• Consider convening the team before school begins to discuss offering new accommodations or a new placement.

Joseph Pfrommer, Esq., covers special education legal issues for 91心頭 sister publication .

Read more油coverage on coronavirus, including how schools are planning for fall.

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In a confusing time, “term confusion” can make life even more muddled for both educators and parents of students with disabilities, according to Jennifer Baldassari, a school attorney with Lozano Smith in Walnut Creek, Calif. “Distance learning,” for example, is a broad term that can include online learning. But it can also refer to or include low-tech options, such as delivering instruction via a packet dropped off at a student’s home.

“Confusion over legal terms of art matters,” says Baldassari. “Folks are using the terms ‘online learning,’ ‘distance learning,’ ‘virtual school,’ and ‘digital learning’ interchangeably when they really mean distance learning���an umbrella term referring to learning that occurs when the teacher and student are in different locations.���

Transparency with use of terms builds trust and confidence across the board. Term confusion, on the other hand, can lead to disputes over parental participation and erode trust. But according to Baldassari, it can create larger equity and access issues.

“If the school district is explaining a distance learning model to its parent communities, but is using the term ‘online learning’ instead of distance learning, some families without access to technology or internet services may feel they are unable to access education for their child during a school closure,” Baldassari says.

But how do you get educators to use the right terms? It comes down to good communication and making sure everyone is on the same page.

Staff training is one opportunity for bringing clarity. “School districts are being asked to provide professional development on the fly �� but it can be a great platform to ensure all staff and employees are up-to-date on the appropriate terminology to cut down on confusion when speaking with parents or members of the community,” she explains. Districts can use e-learning to provide that needed professional development.

Below are some of the most common phrases that are subject to term confusion, along with definitions.

Online learning

According to guidance issued by the U.S. Department of Education’s Office of Educational Technology, “online learning” refers to a wide range of programs that use the internet to provide instructional materials and facilitate interactions between teachers and students and in some cases among students. Online learning can be fully online or combined with face-to-face interactions in what is known as blended learning. Source: Understanding the Implications of Online Learning for Educational Productivity (OET 2012)

Distance learning

���Distance learning��� is generally understood to refer to situations in which the student learns remotely���that is, the student and instructor are in different locations. It may incorporate both online and off-line options, such as instruction via conventional phone calls, or dropping off assignments at a student’s home and then following up with a phone call. Or it may consist solely of low-tech options.

Virtual school

The U.S. Department of Education defines “virtual school” to mean: “A public school that offers only virtual courses: instruction in which children and teachers are separated by time and/or location. In addition, interaction occurs via computers and/or telecommunications technologies, and the school generally does not have a physical facility that allows children to attend classes on-site.” Source:油Dear Colleague Letter, 68 IDELR 108 (OSERS/OSEP 2016)

Blended learning

According to the Every Student Succeeds Act of 2015, “blended learning” means a “formal education program that leverages both technology-based and face-to-face instructional approaches that include an element of online or digital learning combined with supervised learning time, and student-led learning, in which the elements are connected to provide an integrated learning experience; and in which student are provided some control over time, path, or pace.” Source: 20 USC 7112(1)

Digital learning

“Digital learning” is defined by ESSA as: “Any instructional practice that effectively uses technology to strengthen a student’s learning experience and encompasses a wide spectrum of tools and practices, including �� blended learning, which occurs under direct instructor supervision at a school or other location away from home and, at least in part, through online delivery of instruction with some element of student control over time, place, path, or pace; and access to online course opportunities for students in rural or remote areas.” Source: 20 USC 7112(3)

Joseph L. Pfrommer, Esq., covers special education legal issues for LRP Publications.

For more information on the documents listed above, visit the website , a 91心頭 sister publication available by subscription.油

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