What does Michigan's order closing schools for the rest of the year mean for students on IEPs and 504 plans?

Photo by Feliphe Schiarolli on Unsplash

Today, Michigan Governor Gretchen Whitmer issued Executive Order (EO) 2020-35, which suspends in-person K-12 instruction for the remainder of 2019-2020 school year.  This EO will impact every K-12 student and their families across the state, but it will have a particular impact on students who receive special education services.

The Basics of the Executive Order

Here are some of the most important points for all K-12 students in Michigan:

• No in-person school will resume for the rest of the academic year.  This includes public, private, charter, and boarding schools
• The Michigan Department of Education (MDE) has until April 3, 2020, to develop a model plan for individual districts and schools to implement educational services remotely
• If a district or school chooses to use electronic instruction, they have to make sure "to the extent feasible" that students have access to electronic devices to participate and cannot penalize students for having technological limitations
• Parents and guardians are allowed to go to school buildings if necessary to obtain necessary educational materials for their children
• State and federal standardized testing and assessments are suspended, including the Michigan Merit Examination, M-STEP, the PSAT, and Kindergarten Readiness
• AP exams must be facilitated to be taken at home
• Students in 12th grade will be able to graduate with diplomas assuming they would have been otherwise eligible (there is some nuance to this which I will not get into in this blog post)

How the Executive Order Applies to Students Receiving Special Education Services

There has already been COVID-19 related guidance issued by the U.S. Department of Education and the CDC, which I outlined in a prior blog post.  This Executive Order provides further information and direction to Michigan schools.

EO 2020-35's guidance in this area is pretty vague.  Basically, it tells schools that they need to comply with the U.S. Department of Education guidance, and that they need to: "...strive in good faith and to the extent practicable, based upon existing resources, technology, training, and curriculum, as well as the circumstances presented by any state of emergency or state of disaster, to provide equal access to alternative modes of instruction to students with disabilities..."  There's a lot of wiggle room in those adjectives and qualifiers.

The Executive Order does require schools to consider compensatory services for students on an individualized basis, but this is something they would have already had to do under IDEA guidance.  The EO does not specify that those compensatory services must happen as an Extended School Year (ESY) service, but again, schools that comply with the IDEA will be making that assessment individually for every student and presumably, that's going to be something most special education students are going to need.

In terms of IEP and 504 plan meetings, schools are again given a lot of discretion.  MDE has five days from the date of the order to come up with some type of a plan, and one of the options available to them is to request a waiver from the U.S. Department of Education to allow them to: "Deliver instruction to all pupils, including students with disabilities, without having to reconvene or amend individualized education plans (“IEPs”) or Section 504 plans."  There are other options, such as convening IEP meetings by video or teleconference, etc.  Essentially, the order tells MDE that they need to figure this out somehow, and tells them to ask the U.S. Department of Education for further guidance.  This is not very helpful for so many students with special needs who have already gone weeks without any services at all.

Mental Health Services

Interestingly, much of the publicity and reporting around EO 2020-35 states that schools will be continuing to provide mental health services to students.  However, the only actual language in the order about mental health services is this: "A Plan must... [p]rovide mental health supports to pupils affected by a state of emergency or state of disaster prompted by COVID-19."  There is no mention anywhere in the order of mental health services that students may need aside from those directly related to the current pandemic.

We will continue to monitor this situation and will provide relevant updates when appropriate.  Please do not hesitate to reach out to our office if we can assist you in this confusing time.

​***This blog contains information only - no legal advice is being provided and you are not a client of the firm unless we have signed a representation agreement with you***

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