September 2, 2020

MDE Fiscal & Due Process Updates

The Minnesota Department of Education (MDE) has provided several updates to it’s guiding documents for special education during the pandemic. These updates are outlined below.

Fiscal Updates

The Q and A regarding special education finance has been updated to address both the reassignment of Alternative Delivery of Specialized Instructional Services (ADSIS) staff, and Maintenance of Effort (MOE). These updates are summarized below:

  1. ADSIS
    1. Staff reassigned to other work areas when an LEA is operating either a distant or hybrid learning model is allowed. There are no additional SEDRA coding requirements since ADSIS programming costs are not included in the MOE calculations. Staff still need to keep track of their time spent working in all areas, but time spent working outside their approved ADSIS program is still eligible for funding. 
  2. Maintenance of Effort
    1. MDE encourages schools to be mindful of their MOE for SFY 21, as moving a lot of staff/paraprofessionals to help in other capacities could directly affect an LEA’s MOE and cause them to still either have to spend more on SpEd programming in other areas or possibly face losing general education revenue. The federal government has not provided any waivers or safe harbors for LEAs with regards to MOE. The state also has no authority to waive the LEA MOE requirement for any reason. 

Due Process Updates

The Q and A regarding special education due process has been updated to address developing contingency learning plans. These updates are summarized below:

  1. The first question asks: What is the process to plan for movement between instructional models for students with Individualized Education Plans (IEPs)?
    1. MDE’s response includes considering whether the move between instructional models changes the provision of FAPE to a student:
      1. If moving between instructional models would not change the provision of a free appropriate public education (FAPE) to a student, relevant members of the student’s IEP team and the parent should discuss and document how the school district will provide the special education and related services, and supplementary aids and services in the student’s IEP in each instructional model. See 34 C.F.R. §§ 300.17 and 300.101. This may occur when there is no change in the type or amount of special education and related services provided to the student as outlined in the IEP and the only change is how those same services will be provided, in-person or online.
      2. If moving between instructional models includes changing the provision of FAPE to a student (e.g., changing the type or amount of direct services, adding or removing supplementary aids and services, or increasing or reducing paraprofessional support), the school district could hold an IEP team meeting to discuss with school staff, parent(s), and the student, if appropriate, how to best meet the student’s anticipated needs and provide FAPE in each instructional model and could develop an individualized contingency plan addendum to the student’s IEP. See 34 C.F.R. § 300.324(b). Alternatively, if an annual IEP team meeting has already been held, a school district or charter school could seek the parent’s agreement to amend the student’s IEP by developing an individualized contingency plan addendum without convening an IEP team meeting. If the parent agrees to develop the addendum without an IEP team meeting, the school district or charter school would, with the input of the parent, develop a written document to amend or modify the student’s IEP. See 34 C.F.R. §300.324(a)(4)(i)(ii).
    2. MDE’s response outlines next steps for the CLP:
      1. Following the development of an individualized contingency plan addendum that changes the provision of FAPE to the student, the school district or charter school would provide prior written notice proposing to add the individualized contingency plan addendum to the student’s IEP. If the parent signs in agreement or does not object within 14 calendar days, the IEP addendum would go into effect. See 34 C.F.R. § 300.503 and Minnesota Rule 3525.3600. The school district or charter school would then implement the student’s individualized contingency plan based on the school district’s or charter school’s current instructional model. The school district or charter school would not need to review and revise the student’s IEP each time the school district’s or charter school’s instructional model changes, unless the student’s anticipated needs change or another reason for an IEP team meeting arises. See 34 C.F.R. § 300.324(b).
    3. MDE’s response indicates considerations for not developing a CLP:
      1. If a school district or charter school does not develop an individualized contingency plan for a student, the school district or charter school may need to convene an IEP team meeting or seek the parent’s agreement to amend the student’s IEP, and provide prior written notice, each time the provision of FAPE needs to change as a result of the school district’s or charter school’s movement between instructional models. See 34 C.F.R. §§ 300.324 and 300.503.
  2. The subsequent questions have been answered in earlier guiding documents, but are reiterated here. The next question asks: Does each student’s IEP need to be amended and prior written notice (PWN) provided during this emergency distance learning period of time? (EXISTING QUESTION No. 4. in Special Education and COVID-19 Questions and Answers: Due Process)
    1. The MDE’s response indicates the need for IEP team discussion and written documentation: 
      1. The federal guidance received to date does not clearly state when a school district is required to amend an IEP based upon the need to move to a distance learning delivery model due to the COVID-19 pandemic. MDE has consistently provided guidance that in order to develop an individualized distance learning plan for a student with a disability, relevant members of the IEP team and the parent will need to discuss how best to meet the student’s needs in a flexible learning model. And further, that a written document is necessary to set forth any changes needed to provide FAPE through distance learning, and be provided to the parent to ensure agreement and so school staff and the parent understand who will be providing services and how that will occur. This could be accomplished by developing a written document to amend or modify the child’s current IEP. See 34 C.F.R. §300.324(a)(4)(i)(ii). This may result in simply changing the service delivery from in-person to a distance learning delivery model, or may involve more extensive changes depending upon the needs of the individual student with a disability.
  3. The next question asks: Does each student’s IEP need to be amended and prior written notice provided if a district or charter school moves from distance learning only to either the hybrid or in-person learning for all students scenario? (EXISTING QUESTION No. 3 in 2020-21 Planning Guidance: Special Education Due Process)
    1. The MDE’s response provides for different methods of documenting changes and reiterates the requirement for IEP team discussion and written documentation:
      1.  When moving from a full distance learning model to an in-school learning for all students or hybrid scenario, relevant members of the student’s IEP team and the parent will need to discuss how best to meet the student’s needs. And further, a written document is necessary to set forth any changes needed to provide FAPE through either scenario and be provided to the parent to ensure agreement and so school staff and the parent understand who will be providing services and how that will occur.
      2. [Method 1:] This could be accomplished by developing a written document to amend or modify the student’s current IEP. See 34 C.F.R. §300.324(a)(4)(i)(ii). This may result in changing the service delivery from distance learning to a hybrid or in-person learning for all students scenario, or may involve more extensive changes depending upon the needs of the individual student with a disability.
      3. [Method 2:] Another method would be using a prior written notice and revised IEP which describes what the hybrid or in-person learning for all students scenario will look like for a student, the provision of any specialized instruction and related services, and what accommodations are necessary to ensure a student can access and make progress toward education standards and IEP goals. If the district or charter school and parents are unable to reach agreement on how to provide FAPE to the student, the prior written notice would inform parents of their right to object to the proposal and seek alternative dispute resolution. See 34 C.F.R. § 300.530, Minn. Stat. § 125A.091 and Minn. R. 3525.3600.
      4. [Considerations for students who did not make progress in distance learning]: In addition, districts and charter schools should also consider that an IEP team may need to reconvene to review and revise a student’s IEP for a student for whom distance learning was not effective during the spring of 2019-20, to address any lack of expected progress, information about the student provided to or by the parents, the student’s anticipated needs, or other matters. See 34 C.F.R. § 300.324(b). For example, due to any portion of the student’s programming continuing with distance learning, a parent may be in need of training, such as the use of technology, or positive behavior supports and interventions. Additionally, a student may need additional or different accommodations and supports to be able to continue to access the instruction in the home environment.
      5. [Method 3] Finally, as provided for in the CDC guidance on Considerations for School Closures (March 13, 2020), the IEP team could also develop a contingency plan that would address the provision of distance learning only, or hybrid instruction model and include what services would look like, including the specific services and their frequency, type and duration. In the event of another emergency statewide closure or a school- or district-wide closure due to community spread or a student’s exposure to a person testing positive for COVID-19.
      6. [Changes after the annual IEP] Further, in making changes to a student’s IEP after the annual IEP team meeting, the parent and the district or charter school may agree to not convene an IEP team meeting for the purposes of making any needed changes, and instead develop a written document to amend or modify the student’s current IEP. 34 C.F.R. §300.324(a)(4)(i). These decisions must be individualized for each student with documented parental input.

Previous Post

Next Post