Coronavirus and Schools: 2020 ESY and Graduation of Students Turning Age 21
CORONAVIRUS UPDATE
A subscriber has asked several questions related to three COVID-19-related topics. Our answers follow by topic:
First, districts are currently planning for two possible ESY options due to the uncertainty of whether schools will be allowed to open this summer: continued virtual programming and on-site, traditional programs. Related questions:
1. How should we plan for both programs at this time in terms of IEP paperwork, Continuity of Education Plans, NOREP/PWN/letters?
We are reasonably certain that the Governor of Pennsylvania will not reopen schools during the summer months this year. If conditions significantly improve such that he feels opening in July and August are possible, that decision is very unlikely to come in time to gear up for live instruction: building openings, classroom preparation, bussing arrangements, and staffing would all have to be accomplished in a relative instant. The smart money is on planning for continuation of virtual programming for ESY eligible students this summer. If, somehow, we all are able to reopen schools in time for ESY, the paperwork is already in place. As you point out below, IEP teams made and documented most ESY decisions before the end of February and should have issued appropriate NOREPs by the end of March. For those whose ESY determinations came later—perhaps during a virtual IEP team annual review meeting—ESY in a brick-and-mortar setting should appear in the resulting IEP as a component of the student’s non-virtual FAPE.
If, as we expect, you are not able to reopen school for ESY, we go to your next question.
2. If ESY will occur in a virtual setting, do we need to provide families with written notice (in the form of a NOREP or a letter) as required by Act 13 and as we previously did before beginning virtual instruction?
Yes. We will assume that no one had foresight enough to know schools would not reopen in the summer and thus to include virtual ESY in their child-specific NOREPs or letters. Given the uncertainty still lingering about the summer, it would be reasonable that ESY-specific notice would not issue until early June.
Second, we have had discussions that ESY should be based on previous qualifications, as decisions would have been made for 2020 ESY programs in February and March. We anticipate the need for compensatory services for some students, but need guidance on the approach to and timing of services. Related questions:
1. Should we be reevaluating qualifications or programming at this time? Or, would we reflect consideration of this closure as part of next year's decision-making?
Absolutely do not change a child’s ESY services based on the disruption caused by COVID-19. Your FAPE determination, including the ESY portion of it, should be a separate matter entirely from the determination you will eventually make concerning “compensatory services.” Yes, compensatory services will eventually be provided at times when they can supplement, and not supplant, the student’s FAPE. That means they might be provided during the summer in addition to—not as part of—ESY services. The best time to determine whether a child needs compensatory services in addition to his or her FAPE, and to determine what those services should be, is after the closures have ended. It will be very difficult for teams to evaluate the effect of the closures on a particular child without knowing the duration of the closures (we can only guess at this point) and without having the opportunity to observe the child and collect instructional data.
2. When would it be best to start compensatory services? Should this be embedded in ESY 2020?
If our assumption is correct and schools do not reopen this summer, attempting to determine the need for compensatory services before this summer will be premature. Even if we are eager to get some form of compensatory services going as soon as possible, compensating for the losses caused by virtual instruction by providing more virtual instruction seems like a new definition of madness. Assuming, however, that we want to proceed with some form of at least preliminary compensatory services this summer—even though they will likely be virtual—such services would not be “embedded in ESY 2020.” They would be in addition to whatever ESY 2020 is. If your intended ESY program, for example, consists of 2.5 hours of classroom instruction on each of four days for five weeks, compensatory services would have to beyond the 2.5 hours, or beyond the four days, or beyond the five weeks. The only child for whom your ESY program could count as a “compensatory service” would be one who is not eligible for ESY as part of his or her FAPE.
When we end up offering compensatory services—whether in the summer or at other times—those services will have to be distinctly identified as “compensatory” so they are not confused with the child’s FAPE. We can accomplish that separation by issuing a NOREP on which compensatory services are identified as a “proposed action” distinct from the rest of the child’s program and placement or in the IEP itself as items of SDI, each of which is conspicuously listed as “compensatory” with its own unique beginning and end dates.
Third, there also remain outstanding questions related to graduation of students turning 21 prior to June 30. My understanding is that BSE will be issuing guidance or clarification on this issue at some point, as it recognizes that hearing officers and courts have awarded compensatory education to students for FAPE violations even though those compensatory services are provided beyond the student’s 21st birthday. The current BEC concerning Graduation Requirements for Students with Disabilities provides, in part, as follows:
The recommendation for graduation must be appropriate. A student who has aged out of eligibility under the Individuals with Disabilities Education Act or received a regular high school diploma may be entitled to compensatory education if the LEA inappropriately graduated him or her, or otherwise failed to provide a FAPE during the student’s period of eligibility, even if the parent approved the Notice of Recommended Educational Placement/Prior Written Notice. This may include the period of time a student was without a program of education due to an inappropriately issued diploma.
1. Related question: Are students who attain age 21 before the end of the current school term entitled to compensatory services related to the COVID-19 closures, even if those services are provided only after schools reopen, after the end of the school term and after graduation?
Certainly these students should receive diplomas and graduation NOREPs in June. Their right to FAPE will end at that time, as they will have aged out of eligibility for secondary education. The conclusion of their FAPE eligibility, however, does not end their right to be compensated for regression, or for lack of expected progress, that might have resulted from the disruption or interruption of their FAPE while they were still eligible for it. Our courts have made clear, as the above-quoted BEC echoes, that the clock does not run out on compensation for the loss of FAPE, even though it runs out on current eligibility for FAPE. That means that these students might be entitled to some, limited services post-21—perhaps a couple of hours of compensatory service daily for a couple of months. Those services might even be described in an NOREP and IEP, conspicuously identified as compensatory in nature.
We do not believe that providing purely compensatory services will adversely affect the eligibility of these students for adult programming. They will have graduated, and are no longer eligible for FAPE or for secondary education. The limited services we would be providing would be designed to make the students whole for whatever shortcomings in their now-ended FAPEs might have resulted from the pandemic.