ACTION ALERT!!! Senators Introduce Bills to Provide Emergency IDEA Funding

On Monday, June 29, 2020 , Senators Maggie Hassan (D-NH), Chris Murphy (D-CT), and Chris VanHollen (D-MD) introduced the Supporting Children with Disabilities During COVID–19 Act. The bill would provide one-time emergency funding to support Individuals with Disabilities Education Act (IDEA) programs during the COVID-19 pandemic.

The bill acknowledges the disproportionate impact that in-person school and program closures has had on many children with disabilities and the unprecedented budget challenges brought on by the pandemic. It provides emergency IDEA funding to address these issues by specifically providing $11 billion for grants to states, $400 million for preschool grants, $500 for programs for infants and toddlers and $300 million for personnel development.

These funding levels largely reflect the funding request CEC put forward in March, which over 5,000 grassroots advocates supported through the CEC Legislative Action Center.

Today, Tuesday, June 30, 2020, Senator Patty Murray (D-WA), Ranking Member of the Health, Education, Labor and Pensions Committee, introduced the Coronavirus Child Care and Education Relief Act along with 15 of her Senate colleagues. That bill would provide $345 billion in additional funding to the Education Stabilization Fund, authorized through the CARES Act. It also provides $11.9 billion in dedicated emergency IDEA funding but fails to include funding for personnel development.

Both bills are partisan Democrat bills in a Republican-controlled Senate, so they are unlikely to pass. However, they are markers for Democrat priorities on the next COVID-19 package.

Action Alert

As the Senate begins to put pen to paper on a possible next COIVD-19 package, now is the time to amplify the message that emergency funding for IDEA is needed. Tell Senators Murray and Cantwell how important IDEA funding will be for infants, toddlers, children and youth to support ongoing services and education during the pandemic, whether in person or at a distance. Please go to CEC’s Legislative Action Center to take action today!

 

 

COVID-19 (IDEA and § 504) Case Law: Limited Beginnings and Potential Analogies

COVID-19 (IDEA and § 504) Case Law: Limited Beginnings and Potential Analogies by Perry Zirkel

The primary two-part question arising under the IDEA and Section 504 are (a) has the district denied FAPE to the eligible child and, if so, (b) what is the resulting relief, typically but not exclusively in the form of compensatory education? Beyond the collective policy issues for state and local education agencies of whether and how to provide what is variously called recovery or impact services, the case law will inevitably decide this two flowchart-like question, along with various other issues (e.g., child find, eligibility, and ESY), via two separate forums: (1) the adjudicative avenue, starting with due process hearings and ultimately culminating in judicial rulings, and (2) the investigative avenues, which are the state education agency’s complaint process under the IDEA and the corresponding OCR process under Section 504 and the ADA.1

As of January 28, 2020, I have only found one court decision and two state complaint decisions specific to these COVID-19 issues: the federal district court’s June 19 ruling in Chicago Teachers Union v. DeVos, and two earlier state complaint decisions from Iowa and Kansas. All are relatively narrow cases, but they illustrate the impartial legal lens of these two decisional avenues.

The Chicago Teachers Union case was in response to the emergency-type request for a temporary restraining order or preliminary injunction focused on the alleged Chicago school district requirement for every IEP team to meet before the end of the 2019–20 school year to develop a remote learning plan for each IDEA-covered child. Read the decision [PDF], which is highlighted for your convenience, to see the court’s denial of the teacher union’s motion.

The Iowa complaint illustrates the much more frequent likely claim that the school district’s remote learning plan constituted a denial of FAPE. Similarly, read this decision [PDF] to see—again with my highlighting in yellow—the state education’s analysis in favor of the district. In addition to the examination of relevant legal authorities, this decision is based on the distinction between mandatory instructional services, which was one options for local education agencies (LEAs) in Iowa, and “voluntary educational enrichment opportunities,” which the option that the defendant district chose.

The Kansas complaint concerns the more limited issue of access to student records per the 45-day timeline in the IDEA regulations (34 C.F.R. § 300.613(a)). The district did not meet this deadline because some of the records were in the school building, which was entirely closed due to the pandemic. The complaint investigator found in favor of the parents, reasoning that neither the U.S. Department of Education nor Congress had waived or otherwise adjusted this regulatory requirement and, thus, it remained binding in the absence of any mutually agreed-upon extension. The corrective action included training and to have multiple methods of storage in place that assured access in the event of school building closure. Here is the decision [PDF] for your own review.

In light of the obviously limited decisional authority to date, I have provided the following outline of a sample of potentially analogous judicial case law for addressing the central FAPE issue:

IDEA:

    • not an excuse
      • cf. Mills v. Bd. of Educ. of District of Columbia, 348 F. Supp 866, 876 (D.D.C. 1972) – If sufficient funds are not available to finance all of the services and programs that are needed and desirable in the system then the available funds must be expended equitably in such a manner that no child is entirely excluded from a publicly supported education consistent with his needs and ability to benefit therefrom.
    • not a change in placement
      • V.D. v. N.Y., 403 F. Supp. 3d 306 (S.D.N.Y. 2019) – denied preliminary injunction in part because stay-put is not intended for enjoining systemic action
      • N.D. v. Haw., 600 F.3d 1104 (9th Cir. 2010), vacated as moot, 469 F. App’x 570 (9th Cir. 2012) – denied preliminary injunction against systemwide furlough Fridays – not a change in educational placement (triggering stay-put) under the IDEA – fact based (e.g., no complete cut-off) – commenting that “[the] claim is more properly characterized as a ‘material failure to implement [FTI] the IEP’” (citing Van Duyn2)
    • possible resulting FTI denial of FAPE on an individual case-by-case basis
      • e.g., Alex U. v. Dep’t of Educ., Haw., 62 IDELR ¶ 104 (D. Haw. 2013) (sufficient mitigation via “adjustment program”); Noah D. v. Dep’t of Educ., State of Haw., 61 IDELR ¶ 243 (D. Haw. 2013); Haw. v. C.J., 58 IDELR ¶ 10 (D. Haw. 2011); Dep’t of Educ., Haw. v. T.F., 57 IDELR ¶ 10 (D. Haw. 2011). Dep’t of Educ., Haw. v. C.J., 58 IDELR ¶ 10 (D. Haw. 2011); Dep’t of Educ., Haw. v. T.F., 57 IDELR ¶ 10 (D. Haw. 2011)

504/ADA:

Compare McDaniel ex rel. E.E. v. Bd. of Educ. of City of Chi., 2013 WL 3872807 (N.D. Ill. July 25, 2013), denied class certification 2013 WL 4047989 (Aug. 9, 2013) – (preserved disparate impact and reasonable accommodation claims in wake of closure of several district elementary schools due to fiscal crisis), with Smith v. Henderson, 982 F. Supp. 2d 32 (D.D.C. 2013) – requiring intentional discrimination (not disparate impact) in wake of school closures for district reorganization

ESY:

Finally, here is a quick compilation of the primary legal authority specific to the immediate issue of ESY under the IDEA:

    • regulatory criteria: 34 C.F.R. § 300.106
    • judicial precedents:
      • Battle v. Pa., 629 F.2d 269, 280 (3d Cir. 1980)3 – We believe the inflexibility of the defendants’ policy of refusing to provide more than 180 days of education to be incompatible with the Act’s emphasis on the individual. Rather than ascertaining the reasonable educational needs of each child in light of reasonable educational goals, and establishing a reasonable program to attain those goals, the 180 day rule imposes with rigid certainty a program restriction which may be wholly inappropriate to the child’s educational objectives. This, the Act will not permit.
      • M.M. v. Sch. Dist. of Greenville Cty., 303 F.3d 523 (4th Cir. 2002); Johnson v. Indep. Sch. Dist. No. 4, 921 F.2d 1022, 102728 (6th Cir. 1990); Alamo Heights Indep. Sch. Dist. v. State Bd. of Educ., 790 F.2d 1153, 1158 (5th Cir. 1986); Yaris v. Special Sch. Dist., 558 F. Supp. 2d 545, 551 (E.D. Mo. 1983), aff’d, 728 F.2d 1055 (8th Cir. 1984); see also N.B. v. Hellgate Elementary Sch. Dist., 541 F.3d 1202, 1212 (9th Cir. 2008): JH v. Henrico Cty. Sch. Bd., 326 F.3d 560, 567 (4th Cir. 2003) – ESY requires that “the benefits accrued to the child during the regular school year will be significantly jeopardized if he is not provided an educational program during the summer months.”

1 Both of these investigative avenues, unlike the due process hearing route, does not have an automatic right of judicial appeal. For OCR letters of findings, the limited opportunity would be to challenge the agency’s enforcement. E.g., U.S. v. Gates-Chili Cent. Sch. Dist., 198 F. Supp. 3d 228 (W.D.N.Y. 2016). For state complaint decisions, the minority of jurisdictions provide for judicial appeal, while a few others provide for administrative review. E.g., Perry A. Zirkel, State Laws and Guidance for Complaint Procedures under the Individuals with Disabilities Education Act, 368 Educ. L. Rep. 24, 43 nn.72-74 (2019). https://perryzirkel.files.wordpress.com/2019/10/cp-state-laws-and-guidance-article.pdf

2 Van Duyn ex rel. Van Duyn v. Baker School District 5J, 502 F.3d 811 (9th Cir. 2007); see also L.J. v. Sch. Bd. of Broward Cty., 927 F.3d 1203 (11th Cir. 2019). For a more general overview of the FTI case law, see, e.g., Perry A. Zirkel & Edward T. Bauer, The Third Dimension of FAPE under the IDEA: IDEA Implementation, 36 J. Nat’l Ass’n Admin. L. Judiciary 409 (2016). https://perryzirkel.files.wordpress.com/2017/04/zirkel-bauer-article.pdf

3 For other circuit court opinions that followed this rationale of Battle, see, e.g., Ga. Ass’n of Retarded Citizens v. McDaniel, 716 F.2d 1565, 1576 (11th Cir. 1983), vacated and remanded on other grounds, 468 U.S. 1213 (1984); Crawford v. Pittman, 708 F.2d 269, 1028 (5th Cir. 1983).

Take Action Now!!

Join CEC and take action now on the follow issues affecting students needing special education services.

Reauthorize the Higher Education Act

Address the educator shortage crisis

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The U.S. Senate is currently negotiating a reauthorization of the Higher Education Act (HEA). HEA governs federal policy on higher education. Major provisions of HEA include grant and loan programs such as Pell and TEACH Grants; grants to institutions for educator preparation programs; access and affordability of higher education, such as the TRIO and GEAR UP programs, and more. These programs influence the educator pipeline and directly impact schools and classrooms. HEA was last reauthorized in 2008 and is the top education priority for Congress this year.

FY 2021: Support Students with Exceptionalities; Oppose Cuts to Public Education.

Boost funding for special and gifted/talented education to make sure all students can thrive.

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On Monday, the Trump Administration released its proposal for Fiscal Year (FY) 2021 spending. Overall, the budget proposal cuts the Department of Education (ED) by $6.4 billion, or 8.4 percent. The budget also includes $5 billion for proposed Education Freedom Scholarships, or tax credits for vouchers that could be used toward private school tuition.

Special education funding was largely untouched in the ED budget. Aside from a $100 million increase (equal to less than one percent) to the Individuals with Disabilities Education Act (IDEA), all programs authorized under the IDEA were level funded. With diminishing spending power from year to year, level funding equates to a cut roughly equal in size to the inflation rate.

In the last three years, attempts by the Administration to make significant cuts to ED and to divert public funds to a private school voucher program have been unsuccessful. Rather, Congress, which has the ‘power of the purse,’ has sustained and/or incrementally grown critical programs at the Department. Much of the credit for Congress’s actions goes to grassroots advocacy. Voices like yours have made an important difference as appropriators make decisions about annual spending. Please join CEC in supporting public education through this letter-writing campaign.

 

For more information on how to take action and to sign up for CEC’s legislative alerts, visit CEC’s Legislative Action Center (LAC) website.

 

Department of Education Releases Annual IDEA Report to Congress

On Tuesday, the U.S. Department of Education issued the 41st Annual Report to Congress on the Implementation of the Individuals with Disabilities Education Act (IDEA).

 

Since its enactment, IDEA has required an annual report to inform Congress and the public about implementation of the law in four main domains:
  1. providing a free and appropriate public education (FAPE) for students with disabilities and early intervention for infants and toddlers,
  2. ensuring that the rights of students with disabilities and their parents are upheld,
  3. assisting states and localities to provide IDEA services to all students with disabilities, and
  4. assessing the effectiveness of efforts to provide IDEA services.
Key findings [from 2017 state-reported data] include:
  • 93.2 percent of special education teachers providing special education and related services for students aged 3 through 5 were highly qualified.
  • 91.9 percent of special education teachers providing special education and related services for students aged 6 through 21 under IDEA Part B were highly qualified.
  • 94.9 percent of students ages 6 through 21 served under IDEA Part B were educated in the regular classroom for at least some portion of the school day.
To view the full report, go here.

Opportunity to Submit Public Comments on Washington’s Annual Application for IDEA Funds Now Available

The annual OSPI application for federal IDEA funds has been posted on OSPI’s Special Education Web page and will be available for public review and comment for a period of 60 days, prior to final submission to the USDOE Office of Special Education Programs by May 17, 2019. Because OSPI is awaiting a decision by the Legislature regarding the use of IDEA funds in Safety Net awards, two budgets are posted—one budget including federal funding in Safety Net as a state level activity one budget excluding the use of federal funds for Safety Net. Should the Legislature reach a decision prior to our filing date, the budget will be updated.

To submit your comments in writing, email speced@k12.wa.us, fax to 360-586-0247, or mail to the Special Education Office, OSPI, PO Box 47200, Olympia, WA 98504-7200. When submitting your written comments, please insert in the subject line, “WA Part B Annual State Special Education Application, Public Comments.” The deadline for written comments is May 13, 2019.