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***

Guidance has been issued by both the U.S. Department of Education and the CDC regarding how schools should be operating during this time.  One important thing to note is that it is very likely that schools will be closed longer than the current 2-4 weeks that have been implemented in many states.  Per the CDC guidance, "Available modeling data indicate that early, short to medium closures do not impact the epi curve of COVID-19 or available health care measures (e.g., hospitalizations). There may be some impact of much longer closures (8 weeks, 20 weeks) further into community spread..."

Special education services

This is an uncertain time for all students, but even more so for children who receive special education services and who may be impacted not only intellectually but also behaviorally, emotionally, and/or psychologically.  Assuming a school is providing educational services in some format, they need to be taking into account and accommodating the needs of students who are in IEPs or 504 plans.  Per the USED guidance: "If an LEA continues to provide educational opportunities to the general student population during a school closure, the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE."

However, according to USED guidance, schools should still be considering whether to provide services to students with special education needs even if they are not providing educational services to other students:

"Question A-3: What services must an LEA provide if a public school for children with disabilities is selectively closed due to the possibility of severe complications from a COVID-19 outbreak?

Answer: If a public school for children with disabilities is closed solely because the children are at high risk of severe illness and death, the LEA must determine whether each dismissed child could benefit from online or virtual instruction, instructional telephone calls, and other curriculum based instructional activities, to the extent available. In so doing, school personnel should follow appropriate health guidelines to assess and address the risk of transmission in the provision of such services. The Department understands there may be exceptional circumstances that could affect how a particular service is provided.

If a child does not receive services during a closure, a child’s IEP team (or appropriate personnel under Section 504) must make an individualized determination whether and to what extent compensatory services may be needed, consistent with applicable requirements, including to make up for any skills that may have been lost."

Further, as the guidance makes clear, compensatory education must be considered for students with special education needs once school reconvenes.

IEP team meetings

In terms of IEP team meetings scheduled during the school closure, different districts are handling this differently.  Some districts are moving forward with meetings via phone or videoconference.  Some are rescheduling.  There is certainly a strong argument to be made to move forward with meetings electronically.  However, parents will want to consider what is best for their child and themselves - practically, virtual IEP meetings can be very difficult and confusing.  However, if a parent wishes to move forward with an IEP meeting during the school closure, a school should try to accommodate them.  From the USED guidance: "SEAs, LEAs, and schools must ensure that, to the greatest extent possible, each student with a disability can be provided the special education and related services identified in the student’s IEP developed under IDEA, or a plan developed under Section 504."  This should include keeping IEP meetings up to date and on schedule.

***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***