Coronavirus and Schools: NOREPs, Continuity of Education, and Other Loose Ends
We have received so many questions and expressions of concern about our recent advice concerning NOREPs and their relationship to the Continuity of Education that we thought we would take a stab at one-stop clarification rather than answer multiple emails separately.
Continuity of Education
We have attached a simple decision tree outlining the choices LEAs must make in the next week or so to address the extended school closures likely to continue well past April 9. As the United States Department of Education advised in its Q and A guidance issued on March 13, schools have the option of offering no education, virtual or otherwise, during pandemic-related closures. If schools offer nothing to their general populations, USDE added, they need not offer anything to students with disabilities. If schools elect to do nothing, however, IEP teams, once school resumes, will have to consider for each individual child the need for “compensatory education” in addition to the services already in the child’s IEP.
Yesterday, however, the “do nothing” option was eliminated in Pennsylvania. The General Assembly passed and the governor signed Senate Bill 751. This legislation does many things related to COVID-19-related school closures, but one thing it does in particular is require that every “school entity” in the commonwealth “make a good faith plan to offer continuity of education … during the period of school closure.” Plans for “continuity of education must be submitted to—but not necessarily approved by—PDE and must be posted on the Website of the “school entity.” As we have repeatedly noted over the past week, in the time since the term was birthed on the PDE website, no clear definition of “continuity of education” exists. It has become imperative that we figure that out, given that “doing nothing” is no longer an option and “continuity of education is now a legal mandate. How “continuity of education” is implemented in your district will determine the extent to which you must comply with the FAPE mandate for students with disabilities now and the amount of compensatory services you might owe these students later. (We have attached SB 751 in the form we believe was signed by the Governor. The COVID-19-related language appears on pages 28 though 32.)
“Continuity of Education” (note how we type it out rather than create yet another acronym, COE)—according to the guidance we are now receiving from PDE—can mean anything from on-line or paper-and-pencil enrichment resources that families can access at their option all the way to planned courses of virtual instruction aligned with standards. In an earlier pool opinion, we suggested that determining where your plans fall on this continuum of options will depend on four factors:
- Does your continuity of education include planned instruction designed to introduce new learning, or does it consist, rather, of activities and resources that are not tied to curricular outcomes and that are designed to provide enrichment, structure, and engagement to students during days of school closure?
- Is participation in your continuity of education plan mandatory (students must log in or otherwise demonstrate “attendance”) or purely voluntary or optional?
- Are you intending to grade, assess, or credit participation or student performance?
- For students in high school, will completion of the instruction or activities you are offering be credited as high school course work for graduation, or are you simply accepting course completion as of March 13 as satisfactory completion of creditable course requirements?
Your continuity of education might blend elements that look and feel more like mandatory, graded, planned instruction with elements that look and feel more like optional enrichment activities. For example, you might offer actual instruction in ELA and math while providing links to optional enrichment activities in science and social studies. Your plan might also vary what continuity of education looks like at different levels. For example, you might offer instruction in ELA and math at the elementary level, with all other elementary areas limited to optional enrichment or nothing at all, while you offer instruction in science and math at the secondary level, with all other secondary areas limited to optional enrichment or nothing at all.
Determining whether you are on this continuum is vital to determining the scope of your obligations to students with disabilities. To the extent that your offerings looks like instruction targeting new learning, you will have to adhere to the affirmative mandates of the IDEA in delivering such instruction to such students. To the extent that your offerings look like optional enrichment, you will have to adhere to the access requirements of the IDEA and Section 504 in the same manner you would for extracurricular activities.
For present purposes, we will focus on the FAPE end of the continuum. As we have emphasized in nearly every message we have sent on this topic, you will simply not be able to comply completely with the procedural and substantive requirements of the IDEA in an entirely virtual world. No matter how often USDE, PDE, and the Pennsylvania General Assembly remind us that we must be mindful of the requirements of the IDEA in designing instruction for students with disability during periods of school closure, the level of structure, adult personal involvement, and adaptive materials and equipment—not to mention the level of behavior management—required to education many students with disabilities precludes full compliance. Moreover, the amount of paperwork, and the hours required to produce it, needed to comply with IDEA procedural mandates defies our virtual capacities and current time limits as we roll out virtual learning.
We have to accept that our mission is to come as close to meeting the FAPE mandate as we can, knowing we will fall anywhere from short to way sort in doing so. Our purpose—rather than full compliance—should be to offer something useful and meaningful so that we do as little harm as possible and minimize the amount of compensatory services we will owe later. With that in mind, on to our next topic. …
The NOREP Option
The provisions of SB 751—now law—requires that during the COVID-19-related closure of schools—
Each school entity shall provide written notice to the parent or guardian of each student who receives services under an Individualized Education Plan under the Individuals with Disabilities Education Act … of the school entity’s plans for ensuring the student receives a free and appropriate public education are required under IDEA. (emphasis added)
Before this language was even proposed to the Pennsylvania General Assembly, we had recommended use of IDEA-compliant Prior Written Notice (the NOREP) as the vehicle for providing “written notice” to parents of how services will change during the period of school closure. We recognized that revising IEPs for hundreds or thousands of students would be infeasible, require inordinate delay, and cause confusion about the status of the child’s existing programming. The NOREP is legally compliant notice, and it offers a more streamlined means of informing parents directly and for creating the appearance, at least, of individualization. Using the NOREP alone might not amount to full IDEA compliance with the procedures required to make changes in a child’s FAPE, but it comes closer than most other options. Our choices in this crisis are between bad options and worse, after all.
Our guidance concerning the language for use in the “emergency” NOREP is attached. We suggested model language in an effort to streamline the process of completing these documents, but we did not intend in doing so to suggest in doing so that other language would not be equally suitable. A menu of choices that can be rapidly checked off, together with formulaic rationale language, was our less-than-ideal way of enabling some degree of individualization—as the IDEA requires and as SB 751 now clearly anticipates—without slowing the paperwork process down too much.
Many of our clients have let us know that even the streamlined NOREP option is too much. They are indicating a preference for a letter that more broadly advises parents and guardians as a group of planned special education options, letting them know that they will be contacted by teachers to explain details. This approach is certainly one of many—including the NOREP option—that addresses the problem without fully complying with the procedural requirements of the IDEA. As we noted above, our choices right now are between bad and worse. We believe that the NOREP option offers a stab at compliance that is less bad than the letter option is, but it is nothing more or less than that.
For ease of reference we are including below our two previous guidance documents on the NOREP option. Many of you, however, have asked an additional question: What language should we include in Section 7 of the NOREP, where we are prompted to list the type of program we are recommending (e.g., itinerant LS, supplemental LSS, etc.). Assuming you are not bound by your IEP writing software to a limited “drop down” menu of choices, we recommend writing in this section “Interim Virtual Special Education.” If that does not resonate, really anything that conveys the temporary and virtual nature of the option being recommended will suffice.
Our NOREP advice of March 23:
In a recent memorandum, we offered the following observation:
We will not be able to convene hundreds of IEP team meetings—virtual or otherwise—in the next few weeks to adjust the IEPs of every student with a disability to reflect on-line learning, but we might be able to issue NOREPs to our parents notifying them briefly of the temporary adjustments in instruction we will be making during the COVID-related closures.
We recognize, of course, that issuing hundreds of NOREPs might prove daunting as well. We have therefore created the attached model language, and instructions in its use, which we hope simplifies this process.
Why issue a NOREP? Because the provision of “prior written notice” that fully informs parents of your plans, the reasons you are recommending them, and the reasons you rejected other options is the essence of the procedural requirements of the IDEA. While you might not be able to meet all of those requirements, the guidance we are receiving from both USDE and PDE certainly requires that we make every effort to comply where the circumstances allow.
Note that this NOREP, recommending an “emergency plan” to be implemented only during the period of mandated closure, does not affect the “pendent” program of the child and does not require alteration of the existing IEP. If existing IEPs require annual revision during the period of closure, those revisions should reflect the programming that will be in effect when schools reopen. They should therefore not incorporate the emergency plan and should be issued with a separate NOREP.
The above advice, and the attached NOREP language, represents one approach to addressing a totally novel circumstance. We cannot guarantee that this approach—or any approach short of implementing the full FAPE of each child during the period of closure—is foolproof or is sure to prevent successful demands for compensation by parents inclined to litigate. We do believe, however, that this approach offers a means of minimizing the damage that litigious parents will inflict.
And our NOREP advice of March 24:
Some quick answers to some quick questions we have already received about the NOREP we have proposed in our opinion below:
Q. Do we need a parent signature to proceed?
A. No. Parent signatures are not needed on any NOREP other than one by which special education services are offered for the first time.
Q. Do we have to wait ten days to implement the plan we are proposing in the NOREP?
A. No. The NOREP does not change anything about the existing program and placement of the child. The child will either log on and take advantage of the services you are offering—or not. Either way, the services can begin (with the exception of one-on-one related services offered by tele-practice) regardless of whether the child is participating in them. The parent and the child, in other words, are in total control of when the emergency services would begin.
Q. What if the parent requests mediation or due process?
A. Ordinarily, a request for mediation or due process would invoke the “stay-put” or “pendency” requirement of the law. In the current circumstances, however, no “pendent” program or placement is operating for the overwhelming majority of children. The emergency plan, moreover, is not intended to change the existing program or placement of the child. It ceases to exist as soon as school is back in session. Could a hearing officer require a different emergency plan for a child? Maybe, but any such corrective action would have to fall within the parameters of the governor’s school closure and social distancing directives.
Q. If we are having a virtual IEP annual revision meeting during the closure, should we include the emergency services in the revised IEP?
A. No. Keep the emergency plan and the revised annual IEP separate. The annual IEP describes what programming will be in place for the child when school reopens. A parent might want to discuss the emergency plan at the IEP team meeting, and we wouldn’t discourage such discussions. Any revisions to the plan that result from such discussions, however, should be reflected in a re-issued NOREP describing the emergency plan. The annual IEP should be issued with a separate NOREP.