Updated: March 17, 2020. Issued by the Vermont Agency of Education pursuant to the Governor’s Directive of March 15, 2020
by Timothy McQuiston, Vermont Business Magazine With Governor Phil Scott’s executive order that schools close from March 18 to April 6, regular educational services do not continue, and students are not expected to make educational progress. Other services, such as child care for essential public safety and healthcare workers, will be supported by the district’s staff. If it becomes necessary to extend this closure period beyond April 6, districts may also be asked to provide more formal educational services to students. All educational services, to the extent possible, would then be offered to all students through various remote and virtual means.
- During the closure period, because schools are closed and there are no academic or extracurricular services offered to general education students, then there are no services required for students with disabilities.
- If a district moves to remote education in which it continues to provide educational opportunities to the general student population, the LEA 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.
- The Vermont Agency of Education does not have authority to grant waivers from federal special education requirements. Only the U.S. Department of Education may loosen or change requirements under IDEA.
Vermont Education Secretary Dan French said during the governor's press conference Wednesday morning that despite some learning plans beginning as early as Monday that that would not trigger the FAPE requirements. However, if school closures are extended beyond April 6, the continuity of education for all students is required. So, if the closure period goes beyond April 6, districts will be tasked with providing educational services through remote means, therefore they are also required to provide special education services.
The Vermont AOE Continuity of Education Plan Guidance 2, issued Tuesday evening (see below), states: "During the closure period, because schools are closed and there are no academic or extracurricular services offered to general education students, then there are no services required for students with disabilities. Once school resumes, each LEA must provide FAPE to students with disabilities in accordance with each student’s IEP. The IEP team will be required to make an individualized determination as to whether compensatory services are needed."
Secretary French said during the press conference: "During this two-week period, we're expecting districts to just maintain academic performance and progress with students. So at this point during the two-week period it's not triggering necessarily a change in students' individualized education programs through our special ed law, but we do have to start planning for that eventuality if school closures are prolonged beyond the two-week period."
The Champlain Valley School District said in a letter to parents on March 16, "The most common question families have is this: If there is a school closure, is my child still entitled to the services they normally receive per their plan?
"When school is closed for all students, and services are not being provided for all students, your child will not immediately receive their IEP services. Per federal guidance, “If the district is not providing educational services to students during the closure, then there is not a requirement to provide special education services during the same time period.” This is akin to a snow/weather day, and is the procedure for short term absences.
"However, Governor Scott’s statement indicated that schools would be developing plans to ensure that maintenance of learning opportunities exist for students. School districts will be developing plans to address maintenance of learning for all students, and therefore will be working to address the needs of children with IEPs and 504s as part of that work. In the coming days, you will receive additional information about what this will look like."
Background
This guidance is issued pursuant to Governor Scott’s directive to Vermont’s public supervisory unions and school districts (SU/SDs) and independent schools. This directive requires Vermont schools to dismiss by end of day on March 17, 2020 will last through April 6, 2020 -- but may very well be extended for a longer period.
Governor Scott’s directive will task local districts with three key components to support the State response:
- Food and special needs services for children;
- Collaborating with the state to provide childcare options for healthcare workers and others essential to the response; and
- Systems for ensuring maintenance of education during the initial dismissal; and a continuing education plan if schools are dismissed for an extended period.
To prepare for the potential for an extended dismissal, each district must have a Continuity of Education Plan that includes:
- Meal service for those who need it;
- Services for children with disabilities and special needs;
- Working with the state to provide district-based options that meet the childcare needs of healthcare workers and other Vermonters essential to the response (EMS, Fire, LEO, National Guard personnel, etc.);
Under the Governor’s directive, schools will remain operational for administrators, teachers and staff to sustain essential services and to plan and implement continuity of education. The Vermont Department of Health has provided “social distancing” guidance that districts should use to ensure a healthy workplace.
Impacts of Governor Scott’s Order for School Closure Period, March 18 – April 6
During this period of school closure ordered by the Governor, students are not to report to school and school employees are directed to report to work. Staff members may be required to report to work or to work remotely, depending on the needs of the district and the guidance of public health officials. During this closure period, regular educational services do not continue, and students are not expected to make educational progress. Other services, such as child care for essential public safety and healthcare workers, will be supported by the district’s staff.
If it becomes necessary to extend this closure period beyond April 6, districts may also be asked to provide more formal educational services to students. All educational services, to the extent possible, would then be offered to all students through various remote and virtual means.
In order to support Local Education Agencies (LEAs) in their requirements to provide a Free Appropriate Public Education (FAPE) during the closure period, this document will clarify the potential impact of school dismissal or closure on Vermont’s students with disabilities.
As of March 16, 2020, the Office of Special Education Programs of the U.S. Department of Education (OSEP) is working on guidance related to flexibility in timelines and funding allowability questions. The Agency of Education (AOE) will respond to these questions as soon as OSEP provides this guidance to state directors. This document is initial guidance and does not answer the full range of questions that special education directors will have about topics such as evaluations, annual IEP meetings and service delivery. The Agency will issue a frequently asked questions document later this week that will address these questions in detail.
What considerations apply to the provision of a free appropriate public education (FAPE) to students with disabilities in the school closure period from March 18 until April 6?
During the closure period, because schools are closed and there are no academic or extracurricular services offered to general education students, then there are no services required for students with disabilities. Once school resumes, each LEA must provide FAPE to students with disabilities in accordance with each student’s IEP. The IEP team will be required to make an individualized determination as to whether compensatory services are needed.
During the closure period, a district may supply parents and students with supplemental enrichment materials to prevent learning loss and to support parents in keeping students engaged. However, any such materials must be made accessible for students with disabilities (e.g., the district must not utilize online-only learning if all students do not have internet connections, translated materials must be provided, accommodations should be made for students who are vision or hearing impaired). These enrichment materials should remain optional for parents to use. The district should not assess students or input grades based on the optional materials.
How can an LEA provide a free appropriate public education (FAPE) to students with disabilities if remote education is provided to students?
If a district moves to remote education in which it continues to provide educational opportunities to the general student population, the LEA 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. The LEA must also maintain its obligation to provide students with disabilities with equal access to the same opportunities as their peers without disabilities. There is no defined or correct delivery method that will equitably meet the needs of all students. LEAs need to be flexible and consider employing a variety of delivery options. Services, as always, must be individualized. IEP Teams need to decide what, how and when services and supports are provided. Decisions must be made on a case-by-case basis.
When educational services are offered, LEAs 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 Individualized Education Program (IEP) developed under the Individuals with Disabilities Education Act (IDEA). A student’s current IEP accommodations and modifications must be considered. For example – if everyone gets paper packets (general education and special education) then the LEA must ensure that students with disabilities have the necessary accommodations and modifications to access the information contained in those packets. This includes scenarios such as: a student requires assistive technology, a scribe, adult support, graphic organizers and modified content.
As the OSERS (OSEP) guidance the Agency shared last week outlined, services can be provided online, virtually, through instructional telephone calls, and other curriculum-base instructional activities.
Once schools reopen, the IEP team is required to make an individualized determination as to whether compensatory services are needed. Further guidance will be forthcoming on this topic.
What flexibilities or alternate measures might be afforded to LEAs in light of the COVID-19 outbreak?
The Agency of Education does not have authority to grant waivers from federal special education requirements. Only the U.S. Department of Education may loosen or change requirements under IDEA.
Last week the Director of OSEP, Laurie VanderPloeg participated in a Joint NASDE/CASE/CCSSO Webinar on COVID-19 Guidance for Students with Disabilities which is available online. While we await guidance from OSEP, it is useful to review the Director’s comments that seem most relevant to the questions the Agency has been receiving:
- "What we're really hoping that you guys do is look at some really good alternative ways of meeting the needs in that FAPE offer in order to reduce the need for the compensatory services and that we can ensure [students'] needs are being met at this point in time…"
- "…what we'd like to advise you to consider is when school resumes ... take into consideration if there was a significant loss of services to the student during that period of time and whether or not, on an individual basis, the compensatory services need to be considered.”
Further, the Director stated that OSEP is considering the “potential unintended consequences of disruptions to timelines, funding implications, and the potential flexibilities around reporting requirements.” As always, the Agency will keep you posted if and when we receive the anticipated guidance from OSEP.
Additional Resources
For the most up to date information related to COVID-19 in Vermont please refer to the Vermont Department of Health Website.
For current OSEP guidance please see “Questions and Answers on Providing Services to Children with Disabilities During the COVID-19 Outbreak”.
STATE OF VERMONT
EXECUTIVE DEPARTMENT
GUBERNATORIAL DIRECTIVE TO ALL SCHOOL BOARDS AND SUPERINTENDENTS
CONTINUITY OF EDUCATION PLANNING
WHEREAS, on Friday, March 13, 2020, the Governor issued an Executive Order declaring a state of emergency for the State of Vermont in response to COVID-19; and
WHEREAS, since that time, additional cases of COVID-19 have been tested as presumptively positive in the State; and
WHEREAS, the Governor has determined, in consultation with the Commissioner of Health and the Secretary of Education, to proceed with an orderly dismissal of schools in Vermont to support both the State’s response to COVID-19 and the needs of children and families across Vermont; and
WHEREAS, this decision is based on the best scientific evidence available to the experts at the Vermont Department of Health and is expected to help prevent and reduce the spread of COVID-19.
NOW THEREFORE, I, Philip B. Scott, by virtue of the authority vested in me as Governor of Vermont by the Constitution of the State of Vermont, the emergency powers set forth in 20 V.S.A. §§ 8, 9 and 11 and other laws, hereby direct the governing bodies of all public and independent schools as follows:
1. All public schools and independent schools shall be dismissed, and all school related activities shall be cancelled, no later than Wednesday, March 18, 2020.
2. No student shall be required to be in school Monday, March 16, 2020 or Tuesday, March 17, 2020, if necessary, to address the concerns of parents or guardians in response to COVID-19.
3. In order to meet the needs of students and prepare for the potential for an extended dismissal, each school district and independent school must develop a Continuity of Education Plan that includes, at a minimum:
a. Meal service for those students who need it;
b. Continued services for children with disabilities and special needs;
c. District-based options, developed in collaboration with the State, that meet the childcare needs of healthcare workers and other Vermonters essential to the response (such as doctors, nurses, healthcare technicians, emergency medical service providers, fire service, law enforcement officers, emergency management officials and National Guard personnel);
d. Systems for ensuring maintenance of education for students, such as educational materials and assignments, when schools are dismissed Tuesday; and
e. Developing a remote learning plan that ensures continuity of education if schools are dismissed for an extended period.
4. School districts with Continuity of Education Plans in place that meet these directives may elect to close before Wednesday, March 18, 2020. All schools shall be closed for instruction at the end of the school day on Tuesday.
5. All schools shall remain operational for administrators, teachers and staff to sustain essential services and to plan and implement continuity of education through remote learning.
6. All school administrators, teachers and staff shall follow guidance issued by the Department of Health to ensure a healthy workplace.
7. Pursuant to the powers granted to the Governor in 20 V.S.A. §§ 8, 9 and 11 and other provisions of law, I shall from time to time issue recommendations, directives and orders as circumstances may require.
8. The Secretary of Education shall oversee the implementation of this Directive and I hereby delegate to the Secretary of Education such authority as may be necessary for this implementation. All local school officials and governing bodies shall consult with and abide by the direction of the Secretary of Education with respect to compliance with this Directive. School officials shall work with and assist the Agency of Education as directed by the Secretary of Education.
This Directive shall take effect upon signing and shall continue in full force and effect until April 6, 2020, at which time the Governor, in consultation with the Vermont Department of Health, the Department of Public Safety/Division of Emergency Management and the Agency of Education shall assess the emergency and determine whether to amend or extend this Directive.
________________________________
Philip B. Scott
Governor