Season 4: Episode 4: Planning for ESY and Fall 2020 During the COVID-19 Pandemic 

Team decisions about Extended School Year services can be complicated in a regular school year, all the more so during this Coronavirus pandemic. Many school districts are still closed but parents may be expecting in-person ESY services. Join Christina Peer, Miriam Pearlmutter, and Lisa Woloszynek as we discuss ESY decisions, recovery services, and what to keep in mind as your district contemplates fall re-opening scenarios.

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Miriam: Welcome back to Class Act: Updates in Education Law. I’m Miriam.

Lisa: I’m Lisa.

Miriam: We’re attorneys at Walter | Haverfield in Cleveland, Ohio, and every so often, even during COVID-19 times, we get together, this time virtually though, and we talk about the latest legal developments and issues that affect school districts, administrators, teachers, anybody who works with kids in our schools.

Lisa: In our last episode, we talked about some things to keep in mind as the school year winds down, primarily related to special education services and options that districts have during these coronavirus times.

Today we have Christina Peer, head of the education group at Walter | Haverfield, joining us again to chat about what your school district should keep in mind as you look forward to the summer and fall. Welcome, Christina.

Christina: Thank you ladies. Happy to be here with you today.

Miriam: Welcome, Christina. I think one issue on the forefront of everyone’s mind, is the summer. With that, comes, as you know, extended school year services, ESY decisions. In most places, though, buildings are still closed. In Ohio, school buildings are still closed, so that doesn’t really change extended school year services obligations for children who are eligible for ESY. Can you talk about that a little bit, Christina?

Christina: Sure. You’re right, Miriam. It’s a really challenging time for extended school year decisions because districts are still obligated to provide extended school year services to students who qualify in Ohio that’s based on a regression recoupment model. What skills that a student lose? What regression did they suffer over extended breaks? Then how long did it take them to recoup those skills? Those are database decisions. We’re advising districts to make sure that they’re going back and having those extended school year meetings the same way they normally would, only now they’re doing them by Zoom or Google Meets, and looking really closely at the data that they gather from last summer to the fall, summer of 2019 to fall of 2019, and then additionally looking at data that they would have gotten during winter break. When winter break started and then when winter break ended, to see how much the students regressed and then how long it took them to recoup any skills, if they did see regression based on their data.

One of the things we’re telling districts to be really cautious about, however, is not to conflate the two issues of extended school year and regression recoupment over these breaks with what losses students might have suffered during remote learning, because those are two very different things. It’s two separate analysis that teams are going to have to engage in. We don’t want teams at this point without having any guidance to start looking at this idea of compensatory services or recovery services, and to get that mixed up with extended school year.

Lisa: Yes, Christina, I think that’s a great point. I think there’s been a lot of confusion about the two concepts that I’ve heard from a lot of districts. One thing I did want to point out as far as what data to look at, obviously many districts don’t have data to really consider for during their spring break, as you typically would. Also keep in mind, you can look back to historical data and use the available information that you do have.

Christina: That’s true, Lisa, and that’s a really, really good point because you can use regression recoupment obviously, but you can also use, do we believe that regression would occur based on the data and the historical trends that we have, even if you don’t have data that fully supports it. Again, we don’t have as much data this year as we would have otherwise. Teams are going to have to make decisions in some instances based on trends, because we might not necessarily have all of that hard data.

Lisa: Absolutely, and certainly we know that the impact of these school closures have impacted all students, especially those with disabilities. It’s going to be very difficult to look at what’s gone on this fourth quarter to make any determinations looking at that time period.

Miriam: Now, many schools are planning for virtual ESY, but I know, Christina, when we were talking earlier, you did mention that some districts in Ohio have been granted a variance by the department of health,

Christina: Right. The way things currently stand in Ohio, there is an order that’s in effect that was signed by the Director of the Ohio Department of Health, Dr. Acton, saying that school districts are closed– school buildings, I should say, are closed through June 30th of 2020. However, for some targeted educational opportunities, districts can seek a variance from their local department of health, which means they might be able to bring students in for extended school year. They might be able to bring students in for evaluations in order to try to do some of these things in a non-virtual format. Districts have to individually work with the department of health for their specific county in order to see if that variance is going to be approved.

I will tell you that from districts that I’ve talked to, we’ve gotten some mixed results. It seems that all of the different counties in Ohio are handling things just a little bit differently. I’ve had a few districts who’ve gotten approval. I’ve had one district that tried to get approval and was just flat out denied. It’s been a broad range, and districts also have a lot of things to consider when they’re trying to decide, is this something that we want to do? Do we think that we can do it safely? What’s going to be in the best interest of our students and staff as we look at how we might do this over the summer?

Lisa: Absolutely. One thing I want to caution is, because these are plans that are still in development in a lot of districts, and a lot of districts don’t have all these answers yet, you don’t want to hold off on your ESY decisions. You still want to be making those determinations, still making plans about what does the child need forfeit? What do those goals need to look like for the summer? What services, and be looking at different contingency plans, because you may get approval to do some in person. You may do all virtual. There could be a continuum of that. You should be considering what that might look like and how that would best fit for each individual student.

Christina: I think that’s right, Lisa. Districts are also considering things like how much PPE do we have, and what do we have in terms of cleaning supplies? Because as everyone knows, PPE and cleaning supplies are very hard to come by right now. Districts are having to think about, well, what do I have on hand? What am I going to be able to get? Then how does that perhaps impact us in the fall if we’re going to be reopening? I don’t want to use all of the supplies that I have on hand and then not have things for the fall because everything was used up over the summer. There’s lots and lots of considerations right now.

Lisa: Yes. I think a lot of districts also went the step of donating some of their PPE earlier in this crisis. It certainly makes that and even more relevant point to weigh.

Christina: Yes, that’s exactly right. I’ve had a couple of districts who have tried to call the hospitals that they donated to, to say, “Hey, any chance we can get some of that back because, well, now we think we might need it. Did you use it?” The hospitals are like, “Yes, no, see, we can’t get it back to you.”

Lisa: Yes, absolutely. One other thing that I’ve had come up lately too, as far as of planning for the ESY is, as you said, different local departments of health are handling this different, and we’ve had some private providers get some approval, which impacts then the school districts who are responsible for FAPE, especially for transportation, so be having those conversations too.

Christina: That’s exactly right. I think transportation, both over the summer and in the fall, is going to be a huge issue for districts. In Ohio, at least, we’re still talking a lot about social distancing and how we’re going to keep at least six feet of distance between students. Let’s face it, any of us who’ve been on a school bus recently know that there’s not even six inches between students, let alone six feet. It really begs the question of how we’re going to do that. Like you said, in the fall and then also for extended school year, because as you do have some private providers that are opening and districts transporting those kids, how are we going to safely transport?

Lisa: The other thing to keep in mind is, we know that States are starting to do some reopening procedures right now, but we don’t know how that’s going to move forward, and if there’s going to be any regression in that. You should also still have some contingency plans to be able to still provide ESY services, say come July, you’re not able to do an in person service at that time.

Christine: That’s a great point. I think districts also have to be cognizant of students who maybe have underlying medical conditions or who are medically fragile, whose parents might say, even if you could provide me with in-person extended school year services, maybe because of my child’s underlying health issues, I’m not comfortable with him participating in that way. I would rather still do online just for health and safety reasons. Districts are going to have to be really flexible in terms of what they’re offering.

Clearly there’s never a one size fits all approach to extended school year, but I think this summer we’re going to have to be even more flexible than usual in terms of what are the different offerings that are out there.

Now, I also have some districts that are looking at private agreements with parents, where a parent has said, “Look, I have a private speech language pathologist who’s willing to work with my child individually. Could we, instead of getting services from the district, you provide the funding that you would have otherwise spent on district based services and let me apply that towards services from a private person”, and districts can do that. The caution is if they do elect to go that direction, then they should always do it through some agreement. They should consult with legal counsel about what that looks like.

Lisa: Yes. That’s a great point.

Miriam: Yes. Again, I think it’s a good example of how districts can be flexible. I think that’s a perfect example of that.

Lisa: Yes. Creativity seems to be the key right now for services really across the board. As we move through that ESY regression recruitment analysis, we did mention there’s also this concept floating out right now of recovery services, which is the term we like to use to reference what might end up being compensatory in nature from the closure to attempt to make up for services that need to be for certain children.

Let’s just talk about that concept a little bit. It’s certainly ever evolving, and we really don’t have any standard for how that analysis is going to look like, but I do know some districts are trying to be very kid-friendly, and proactive, and thinking, “Okay, well how can I work on this over the summer?” Let’s just talk about what that looks like and a few cautions before you move forward with those types of activities.

Miriam: I guess I just want to just clarify. This is a point of confusion, I think, for parents as well. Recovery services entail a different analysis completely than ESY. Some parents we’re seeing are asking for extended school year because my child, this last quarter or this last spring semester, didn’t really benefit much from the online services the school district provided, so I’d like ESY services. Those two analyses are completely separate.

Christina, could you start us off a little bit about that?

Christina: Sure. Extended school year, like we just talked about, is a question of what’s necessary in order for a student to receive a free, appropriate public education. It’s based on this regression recoupment model. The recovery services, or compensatory education, whichever term you want to use, is more based on are there things that we need to provide to a student because they did not receive enough benefit during the times that school buildings were closed and we were on remote instruction?”

In Ohio, at least, the Ohio Department of Education is trying to make a distinction between the concepts, at least this has been what we’ve heard so far, the concepts of compensatory education, which implies that the district made a mistake or multiple mistakes, and there’s something to compensate for, versus recovery services, which really is more of the connotation of the district did the best that it could and provided remote instruction and remote learning opportunities, but this is a student who, based on the nature of their disability, couldn’t really receive a lot of benefit from those services, so they missed out on more than other students did.

I think everybody could agree that all students during this time have lost out on things. Whether it’s a student with a disability or whether it’s a general education student, instruction for all kids has been different than it would have been. Everyone has missed out. The question is, do we have some students with disabilities who’ve missed out to the point that we need to provide them with some additional services to make up for that in some way? It’s a really difficult concept right now, and it’s a difficult concept because we don’t have any guidance either from the US department of education, and we don’t have any guidance in Ohio from the Ohio Department of Education letting districts and teams know how they should be looking at these cases, and what factors they should be considering, and what data they should be looking at.

For the most part, I think districts are really trying to push those decisions down the road a little bit further. I think that that’s right because until school starts to resume in some a normal manner, you can’t even really take good data to compare, well, where was the student when schools closed in March versus where are they now. Because we all know that the data that we’re taking based on remote instruction, is probably going to look different than the data that we were taking in the classroom. It’s not even an apples to apples comparison until we get kids back in school buildings.

Lisa: Absolutely. I think two districts certainly want to take a child-centered approach and try to provide what they can now almost so they don’t have to later, but I think it’s super important that we just don’t know how these decisions are going to need to be made, and again, don’t even really have the best data to make them yet. Certainly, as you’re planning things for students over the summer, don’t just assume that if you provide a certain number of hours of something, it’s going to equate to whatever recovery or makeup services might be necessary.

Christina: Exactly. We’re not even sure yet about how those decisions are going to be made. For instance, our IEP team’s going to have to meet individually for each and every student. At one point, ODE was putting out that out there, then they backed off a little bit. It’s even unclear whether these are going to be individualized IEP team-based decisions, or if there’s going to be some different model that’s used.

Miriam: Another interesting area that I’m hearing about a little bit, is the really the youngest little kids, the students who are transitioning from preschool to kindergarten, and they’re starting kindergarten in the fall. This summer would typically be a process of assessment and transition for those little ones, and this summer might look very different for them.

Christina: I think you’re right, Miriam, and from a legal perspective, districts are in a little bit of a pickle with some of these kids, at least in Ohio, because in Ohio, we have a category that is recognized in our Ohio operating standards, it’s not a federal category, but it’s a student with a developmental delay, but that’s a preschool only category. We have a number of kids who are in preschool who are identified under IDEA with a developmental delay, and those students, before moving to kindergarten, need to be reevaluated to determine whether or not they fit into one of IDEAs, other eligibility categories.

A student with multiple disabilities, a student with autism, a student with another health impairment, et cetera and it’s very hard for districts right now to do those evaluations because, of course, kids aren’t in school, and we’re having a hard time getting the assessments done, particularly with trying to maintain social distancing, school buildings being closed, the needs to do observations, which you really can’t do in any a good way at this point over the summer. It might get a little bit easier if districts are able to open up a little bit over the summer and run some of their summer programs, but again, we don’t have any guarantees about that right now.

I think the best thing that districts can do is to really look hard at the evaluation that needs to be done. Go back and revisit their planning form and try to decide how much of the direct assessment that we indicated on the planning form do we really truly need in order to find the student eligible or not eligible in order to come up with a disability category for the student. If it’s something where we can maybe say, “Look, it would have been nice to have all of these assessments, but it’s not necessary to make a decision.” Work with the parents, amend the planning form, and then you can always put in your prior written notice that when school resumes, we’re going to do some additional evaluation.

It’s not as though the district is saying, “We don’t want that additional information.” We’re saying, “For right now, we just need to find a path to move forward to make sure that the student is identified and maintains their eligibility for school-age services.”

Lisa: I think that is a process that districts should be thinking about really for all the evaluations that they still have floating out there that were supposed to be due this school year or through the summer, because you are definitely going to want to look at can you complete any of those, and how can you best do that if you are able to get some approval to do some in-person stuff, is there a group of those students that you can do that for and provide a safe environment, and are there students that maybe you can’t do the same for and you need to work with the records that you have? Like you said, Christina, to figure out for those preschool. The kindergarten transitions for developmental delay. If there’s enough information to determine a different category, and certainly new assessments can be done at any time the team feels they’re necessary.

You can always get back together once everybody’s back in the swing of being back in a physical school building and in-person to gather additional data so that you can certainly have a more thorough evaluation, but definitely think out of the box of how you can accomplish some of these really for two reasons. One, for timeline issues, but also can you imagine how these are going to snowball come the fall or even winter. Just think about all those things.

Christina: Absolutely. I think that when all of this first started to happen, districts were thinking that we were going to get a lot of leeway in terms of some of the guidelines, and folks started postponing evaluations because they knew we couldn’t do direct assessment and we couldn’t do observation, and we didn’t just want to do a records review for all of these students. A lot of things got postponed thinking, “Okay. Well, either this isn’t going to last that long or we’re going to get some dispensation in terms of the deadlines.” Well, obviously neither of those things has happened.

I think this has lasted longer than anyone thought that it was going to last initially. On top of that, we haven’t gotten any relief from the deadlines. I think now is the time to go back and reassess how we’re handling some of those cases, and for districts that have school psychologists and other related service providers, who you might be able to bring in over the summer, whether they have extended contract days, or whether you can pay them on a per diem basis to get some of these evaluations done.

I think you’re right, we’re much better getting those done now because, oh my gosh, can you imagine what the fall is going to look like when you have your regular caseload of evaluations that need to be done? On top of that, all of the ones that had been postponed from this spring.

Lisa: Yes. Also, while you’re trying to get all students back up to speed and see where they’re at and how you need to adjust your learning strategies, it’s certainly a lot that’s going to have to be going on all at once. One thing I did want to mention, though, that I have come across, is that the US Department of Education has expressed some flexibility just in timelines historically, but has often left that decision up to the states. There is some guidance, for example, a 2012 letter from the office of special education in rehabilitative services at that time, which indicated that there might be some state flexibility to evaluation timelines. At that point, it was in response to hurricane Sandy and the impact that that had certainly on certain districts in New York, but we certainly can’t take that as there is, for sure, going to be flexibility.

We already know that the recommendation to Congress, was that the US Department of Education was not seeking changes to timelines and what constitutes FAPE. Definitely a very uncertain area. While we recognize there are certain circumstances where it’s going to be nearly impossible to complete an evaluation because of the need for in-person, certainly try to do whatever you can for the ones that it is within possibility to do at least certain components and as much as possible.

Miriam: No. One of the things I think it’s just so difficult for IEP teams nowadays, is that when teams are thinking about writing an IEP or updating an IEP, that they’re always looking at how services will look, what a child’s day will look like when those services are being implemented. Right now, there’s just so many unknowns about the fall. It’s difficult to even imagine how an IEP team goes about drafting an IEP and thinking about planning for a child when we really just don’t know what reopening will look like.

Lisa: I agree. I think we are definitely in a time where there’s so many things for the IEP teams to consider, almost thinking about different types of contingency plans. I think we’re going to be entering potentially a phase of a lot of IEP amendments as schools get back into session, and new data is able to get gathered.

Christina: I think that’s right, but I think the districts just need to be very cognizant of the fact that when you’re writing an IEP, you have to write it so that it provides the student with a free appropriate public education. You can’t write an IEP centered around remote learning or something like that, because that’s not the students LRE. No one would say that home instruction is the LRE for most of our students.

We’re doing that now because we can’t safely be in schools, so districts need to make sure that they’re writing IEPs as if we were open for regular business, if you will, but also taking into consideration, like I think you were saying Lisa, where are the students now? What’s happened over these past several months when kids have been out of school? How has that impacted student needs and maybe the services that we’re going to be providing?

Then really working with parents as we do figure out what, before working with parents to say, okay, now that we know what fall looks like, we know what the IEP looks like because we have to provide FAPE, but how are we going to be working with you more specifically, with your child and with whatever the fall looks like, whether it’s we’re back in school full-time. That would be fantastic, but I don’t think anyone really thinks that’s what’s happening. Whether it’s some sort of a hybrid model.

I know at Ohio, different hybrid models are being discussed right now. One that I heard is, dividing students into group-A and group-B. Group-A students go to school Monday, Tuesday. Wednesday, all buildings are closed for deep cleaning. Group-B students go to school Thursday and Friday. On the day the students are not in school, they’re doing remote learning. It is a hybrid model.

I’ve heard a shortened school day model. We have half the group in, in the morning, and they do an abbreviated school day where we focus on core instruction. Then we have a second group of students come in in the afternoons, but we don’t have so many kids in classes that we can do more social distancing. There are so many variations out there.

Lisa: Yes. What I think is really interesting about a lot of those variations, and certainly some of the draft guidance that has been circulating, is they really don’t address students with disabilities very specifically, if at all. I think it is going to be really important for districts to be thinking about this group of students because, for example, the A, B type hybrid model may not work for some students with disabilities.

You may need to look at is there a certain group that does need to come in every day, or needs to at least come in more frequently or to do stay related services or other types of specially designed instruction, and just thinking about what that flexibility is going to need to look like, and then obviously the logistics that are going to have to go along with it.

Christina: Right. I think as we look again at social distancing and things like that, certainly for some of our most disabled students who are receiving resource from instruction, while there’s not a lot of kids in those rooms, by design, those are the students who need to have someone literally right with them, in some cases providing hand over hand assistance. There are students who are using manipulatives. There are students who might need assistance with toileting, with wheelchair transfers, all kinds of things that require close physical contact in a way that your general education students do not, particularly as those general education students get older.

Lisa: Yes, absolutely, and it certainly brings up all kinds of questions that you wouldn’t probably typically be thinking about when you’re thinking about just special education services, like what the facilities need to look like? Do you need to have smaller classes? How logistically can you do that with your staff members? Do you need to use other buildings to spread out classrooms? Just logistics like that definitely can snowball into a whole lot of things for school districts to consider.

Miriam: Ladies, thank you so much. These are really important topics for school districts to think about. Christina and Lisa, I really appreciate your time in joining us today and talking about these things, talking through some of the issues. I hope everybody has a fabulous summer. I did want to let you know that over the summer, we will be releasing some podcast episodes that we’ve recorded before the pandemic.

They were concern some in general issues, legal cases that we found interesting, manifestation determination review topics, as well as some interesting topics about how to handle difficult situations with parents. I hope you enjoy those, and please rate us highly on Stitcher or iTunes or wherever you get your podcast. Have a great day.

Lisa: Stay healthy.

Miriam: Stay healthy. Very important.

Disclosure: The content of this podcast is provided for general information purposes only. The podcast is not legal advice, does not create an attorney-client relationship, and should not be relied upon in making legal decisions. Actions and legal matters should be taken only upon advice of legal counsel. Walter | Haverfield does not guarantee the accuracy of information contained in this podcast.