The 2020 school year is unprecedented, and special education is no exception. Going into the school year, it’s more important than ever for school boards to be well-informed and well-connected. School boards can prepare themselves for the unexpected by staying current with state and federal guidance and identifying potential barriers to success for the schools they serve.

In the field of special education, state and federal guidance been updated during the pandemic in three impactful ways with regard to funding, service delivery, and due process timelines. With regard to funding, it’s important for school boards to know that districts and charters should appropriately staff their special education program for their specific plan at the start of the school year. This would mean all staff assigned to special education should be performing duties related to special education. Consideration should be given to ensure that all special education duties outlined in the IEP are covered. If districts move into more restrictive models during the school year (e.g., moving from in-person learning to distance learning) special education staff funded with state special education funds may be reallocated to general education responsibilities and still budget for the position with special education funds.

With regard to special education services, it’s important to know that some goals and objectives might not be able to be addressed in distance learning and that services to students might look different than they did before the pandemic. The task before IEP teams is to consider what services and supports are necessary for the student receive a free and appropriate public education (FAPE) and to make progress in the general education curriculum.

Finally, it’s important for boards to know that due process timelines could look different in an individual situation. While all provisions of the Individuals with Disabilities Education Act, including timelines, remain in effect during the COVID-19 pandemic, the Office of Civil Rights/Office of Special Education and Rehabilitation Services supplemental fact sheet states: “As a general principle, during this unprecedented national emergency, public agencies are encouraged to work with parents to reach mutually agreeable extensions of time, as appropriate.” Some due process timelines, therefore, will not be met at a typical time.

There are a few potential issues schools may face with regard to special education, including compensatory education, denial of a FAPE, and maintenance of effort. First, school boards should be aware that a student may be owed compensatory education if they have not received their special education services. Many districts, therefore, are keeping service logs to document service provision should there be a dispute. Generally, compensatory education is a remedy that is provided to students who did not receive a free appropriate public education due to something the school district or charter school failed to do. Compensatory education is awarded when the loss of special education or related services or the failure of the services provided caused some educational harm. Whether a student suffered educational harm will be an individualized determination based on the student’s unique circumstances.

Second, school boards should be aware that legal action can be taken against a school if parents believe their student did not receive access to a FAPE. Among the many factors in making this determination, it will be important to consider if educational services were designed to meet the individual needs of the student as adequately of the needs of non-disabled students are met. It will also be important to consider the unique impact of the pandemic and the required school closure as one factor.

Finally, it will be important for school boards to pay attention to Maintenance of Effort (MOE). From the Minnesota Department of Education:

The term “Maintenance of Effort,” often shortened to “MOE,” requires federally funded grant program recipients to demonstrate that the level of local funding for a particular program remains constant from year to year.

The Individuals with Disabilities Education Act (IDEA), Part B, which addresses funding allocations to the state education agency (SEA) and local educational agencies (LEAs), includes maintenance of effort provisions applicable at both the state and local level. LEAs in Minnesota are school districts, independent charter schools, and special education cooperatives responsible for free appropriate public education (FAPE) for students with individualized education programs (IEPs).

The local MOE requirement obligates any LEA receiving IDEA, Part B, funds to budget and spend at least the same amount of local – or state and local – funds for the education of children with disabilities on a year-to-year basis. The intent behind the MOE requirement is to help ensure that the SEA and LEAs are expending at least a certain level of non-federal funds for the education of students with disabilities. The required MOE levels for budgeting and spending are referred to, respectively, as the “eligibility standard” (also known as initial MOE) and the “compliance standard” (also known as year-end MOE).

Failure to meet MOE requirements may result in the LEA losing eligibility to receive federal funding, or a reduction in the amount the LEA would receive, or a repayment of funds.

 

MOE is particularly important this year because if staff are reassigned to support general education responsibilities, this has a negative impact on meeting MOE requirements. Schools may need to hire and spend more in special education in order to meet MOE requirements.

 

In summary, it’s critical in this unusual school year to ensure strong supports for your school in the area of special education. It’s imperative that school teams have access to experienced and knowledgeable special education experts that can help navigate the uncertainty and plan for the challenges that lie ahead. Planful support for your special education team can help ensure that resources are utilized appropriately and your school team is able to focus on what matters most–providing outstanding educational services to students.