Conducting Individualized Determinations of Need

Contents

Supporting Students with Disabilities as Schools Reopen
Background
Assembly Bill 86: Supplemental Instruction and Support
Assembly Bill 130: Learning Recovery Support
Determining Service and Support Needs
Guiding Questions for the Individualized Education Program Team
Social-Emotional Support
Progress Monitoring
Developing Comprehensive Individualized Education Programs
Alternative Dispute Resolution
Conclusion

Supporting Students with Disabilities as Schools Reopen

The 2021 Budget Act (Senate Bill [SB] 129, Chapter 69, Statutes of 2021), requires the California Department of Education (CDE) to issue guidance, no later than September 1, 2021, to provide support to Local Educational Agencies (LEA) in identifying factors to consider when conducting individualized determinations of need to address impacts to learning or services related to COVID–19 school disruptions, including examples of strategies to monitor pupil progress for purposes of conducting these determinations and guidance on the development of comprehensive Individualized Education Programs (IEP) that are responsive to identified student needs. The purpose of this notice is to fulfill this requirement and provide families and LEAs with information on various topics related to supporting students with disabilities as LEAs return to in-person instruction. Further, this notice contains important information about available resources to promote learning acceleration, as well as important distinctions between various terms being used to describe services available to students with disabilities during this critical time.

Background

The COVID–19 pandemic resulted in unprecedented school closures across the state beginning in March 2020, which largely impacted the educational options offered by LEAs. In many cases, the unique barriers created by the COVID–19 pandemic resulted in educational services being delivered in alternative ways, such as distance learning or a hybrid model of in-person and virtual instruction.

Since March 2020, the California Department of Education (CDE) has issued several iterations of guidance pertaining to services for students with disabilities on the CDE’s Special Education Guidance for COVID–19 web page. As circumstances related to the COVID–19 pandemic and school closures evolved, the guidance addressed critical issues such as ensuring equitable access for students with disabilities and implementation of the IEP.

The CDE’s guidance noted that, according to the United States Department of Education (USDOE) Office of Special Education Program's (OSEP) March 21, 2020 guidance, "These exceptional circumstances may affect how all educational and related services and supports are provided . . . the provision of [free and appropriate public education (FAPE)] may include, as appropriate, special education and related services provided through distance instruction provided virtually, online, or telephonically . . . schools may not be able to provide all services in the same manner that they are typically provided . . . federal disability law allows for flexibility in determining how to meet the individual needs of students with disabilities. The determination of how FAPE is to be provided may need to be different in this time of unprecedented national emergency."

For some students with disabilities, delays or disruption in IEP services or special education evaluations due to COVID–19 related school closures may result in a need for additional services and support to address learning gaps.

Assembly Bill 86: Supplemental Instruction and Support

Assembly Bill (AB) 86 (Chapter 10, Statutes of 2021) authorized a total of $6.6 billion for Transitional Kindergarten (TK) through grade 12 schools regarding school reopening. The funding provided by AB 86 is meant to accelerate the safe return to in-person instruction across California and provide schools the resources to expand academic, mental health and social-emotional supports, throughout the school year and over the summer.

Of the $6.6 billion, $2 billion is available for In-Person Instruction (IPI) Grants. The $2 billion IPI grants were made available to LEAs offering in-person instruction, including hybrid models, in accordance with AB 86. IPI Grants can be used for purposes associated with in-person instruction, including COVID–19 testing, cleaning and disinfection, personal protective equipment, ventilation, salaries, and social and mental health support services.

The remaining $4.6 billion was made available for Expanded Learning Opportunities (ELO) Grants. ELO grant funding can be used for extended instructional learning time, learning supports, health, counseling mental health and social emotional learning, community learning hubs, supports for credit deficient pupils, and training for school staff. For more information on the AB 86 COVID–19 relief package, please visit the CDE’s COVID–19 Relief and School Re-Opening Grants web page.

AB 86 requires that LEAs receiving IPI and ELO grant funds ensure all services delivered to students with disabilities are delivered in accordance with an applicable IEP. Education Code (EC) Section 43522(g). However, supplementary instruction and support services offered through AB 86 grant funds are in addition and complementary to IEP services.

AB 86 added Section 43520.5 to the California Education Code (EC), which defines supplemental instruction and support, respectively, as follows:

EC 43520.5

(j) “Supplemental instruction” means the instructional programs provided in addition to and complementary to the regular instructional programs, including services provided pursuant to an individualized education program, offered or provided by a local educational agency.

(k) “Support” means interventions provided as a supplement to those regularly provided, including services provided pursuant to an individualized education program, that are designed to meet pupils’ needs for behavioral, social, emotional, and other integrated pupil supports, in order to enable pupils to engage in and benefit from the supplemental instruction provided pursuant to this chapter.

An LEA receiving ELO Grant funds under EC Section 43521(b) is required to implement a learning recovery program that, at a minimum, provides supplemental instruction, support for social and emotional well-being, and, to the maximum extent permissible under the guidelines of the United States Department of Agriculture, meals and snacks to, at a minimum, students who are included in one or more of the following groups:

• low-income,
  
  
• English learners,
  
  
• foster youth,
  
  
• homeless students,
  
  
• students with disabilities, [emphasis added]
  
  
• students at risk of abuse, neglect, or exploitation,
  
  
• disengaged students, and
  
  
• students who are below grade level, including, but not limited to, those who did not enroll in kindergarten in the 2020–21 school year, credit-deficient students, high school students at risk of not graduating, and other students identified by certificated staff.

EC Section 43522(b) identifies seven supplemental instruction and support strategies that may be supported with ELO Grant funds. LEAs are not required to implement each supplemental instruction and support strategy. Rather, LEAs are to work collaboratively with their community partners to identify the supplemental instruction and support strategies that will be implemented. LEAs are also required to develop a plan for how supplemental instruction and support will be provided to identified students in one or more of the seven strategy areas.

Supplemental instruction and support may benefit all students or select student groups, including students with disabilities. Supplemental instruction and support may help address any learning gaps incurred by students with disabilities resulting from COVID–19 related school closures.

Assembly Bill 130: Learning Recovery Support

Section 161 of AB 130 (Chapter 44, Statutes of 2021) appropriated $450,000,000 from the General Fund to the CDE, on a one-time basis, for allocation to Special Education Local Plan Areas (SELPAs) to provide learning recovery support. Specifically, this funding shall be expended by SELPAs and their member LEAs for purposes of providing learning recovery support to pupils1 with disabilities associated with impacts to learning due to school disruptions stemming from the COVID–19 public health emergency during the period of March 13, 2020, to September 1, 2021, inclusive.

On or before October 1, 2021, SELPAs are required to work with member LEAs to develop and submit a plan to the CDE detailing how the SELPA and its member LEAs will implement the requirements associated with this funding, including detailed proposed expenditure information broken down by eligible activity; the number, disabilities, and demographics of pupils proposed to be served; evidence of matching funds as required by this section; and any other information required by the CDE.

In expending funds appropriated for this purpose, SELPAs and LEAs shall do all of the following:

• Ensure that learning recovery support provided with these funds is related to COVID–19 school disruptions during the period of March 13, 2020, to September 1, 2021, inclusive.
  
  
• Match funding received under this section on a one-to-one basis by other funds spent for these purposes.
  
  
• Not use this funding to supplant existing expenditures or obligations of the LEA.
  
  
• Not use funds received under this section for, or use these funds to match expenditures for, attorney’s fees.

Further, SELPAs are required to submit a report to the CDE on or before September 30, 2023, that describes how funding received under this section was spent and that includes a summary of learning recovery services provided. The summary shall include the demographics of pupils served through the learning recovery and supports provided, including, but not limited to, the pupil’s disability, family income, English learner classification, and the parent’s primary language.

Learning recovery support is not defined in this context. Therefore, SELPAs and LEAs may apply that term broadly to justify expenditures that address learning gaps and accelerate progress for students with disabilities. This may include expenditures related to providing missed services, contracting with related services providers, facilitating collaborative IEP team meetings, and/or conducting outreach to parents and students.

Determining Service and Support Needs

Determining service and support needs for students with disabilities should be an individualized process. IEP teams should review a variety of available student data to determine an appropriate plan for supporting the student with learning recovery and accelerating progress in meeting IEP goals.

Educational need can be measured by assessing whether or not the student continued making progress in the general education curriculum, or alternative course of study specified in their IEP, assessing progress toward meeting individualized IEP goals, and assessing for any regression that may have occurred during the period of COVID–19 school disruptions. IEP teams may wish to review student data prior to COVID–19 school disruptions to establish a baseline and compare current skills and performance. Data to be considered includes, but is not limited to:

• review of the student’s progress on IEP goals, objectives or benchmarks;
  
  
• observation and data from teachers, therapists, parents, and others having direct contact with the student;
  
  
• screening, assessment or information maintained on the student, including pretest and posttest data; and
  
  
• curriculum-based assessment, including pretest and post-test data; and other relevant factors.

Data should be discussed and considered in the context of the educational options offered by the LEA and services provided to the student for the duration of COVID–19 school disruptions. This includes student participation in any activities and data from those offerings; including but not limited to:

• observations;
  
  
• samples of the student’s work;
  
  
• behavior logs;
  
  
• screenings and assessments; and
  
  
• parent interviews/observations.

Given the unique circumstances presented by COVID–19 school disruptions, parents were increasingly vital partners in educating students. As such, parental input is crucial and parent information and concerns must be considered in determining service and support needs for students as they return to the classroom.

As noted above, the law states that Supplementary Instruction and Support Services offered through AB 86 grant funds are in addition and complementary to services offered through the IEP. As for Learning Recovery Support offered through AB 130 grant funds, the law neither requires nor prohibits that these services be offered through the IEP. IEP teams should clearly document the plan for delivering those services and support deemed necessary for FAPE. The LEA can determine what services and supports are to be offered pursuant to the IEP and what services and supports are to be offered outside of the IEP process.

Guiding Questions for the Individualized Education Program Team

When discussing available sources of data and determining ways to accelerate learning for students with disabilities, the IEP Team is encouraged to explore innovative ways to address any loss of skills or regression. This may be done by carefully considering a student’s individual circumstances, including the student’s strengths, impact of their disability on access to services and support, and social-emotional well-being, along with the learning recovery options being offered by the LEA. In determining service and support needs for students, IEP teams may wish to consider the following questions:

1. Were services on the IEP not offered or provided? If not, how long were services suspended?
   
   
2. What educational options and services were provided for the student by the LEA during COVID–19 school disruptions?
   
   
3. Depending on the educational options offered by the LEA, was the student adequately engaged for the duration of COVID–19 school disruptions?
   
   
4. Were any previously acquired skills lost?
   
   
5. Did the student fail to make effective progress toward achieving their IEP goals?
   
   
6. Did the student fail to make effective progress in the general education curriculum?
   
   
7. Does the student need additional supports and/or services temporarily to address learning gaps? What kind of support or services? For how long will the additional support and/or services be provided before reassessing need?
   
   
8. What are the learning recovery support services or supplemental instruction and support being offered by the LEA? How can such support and services assist the student?
   
   
9. Is a re-evaluation warranted for the student, given the data (or lack thereof) available to establish need?
   
   
10. What does the student performance data available from prior to COVID–19 school disruptions (prior to March 2020) indicate? Consider data points including: grades, IEP goals, benchmark assessments, formative assessments, interim assessments, teacher observation, and parent input. How does that compare to what is known about the student presently?
    
    
11. How was the student’s performance during COVID–19 school disruption? Consider student data regarding participation, work completion, grades, IEP goals, and parent input. Did the student thrive or was the student challenged by the educational options offered?
    
    
12. Did the student require/receive extended school year services during summer?
    
    
13. What was the experience of the student and family during COVID–19 school disruptions? Does the student have social-emotional support needs impacting their wellness and learning?

These questions are meant to facilitate substantive, collaborative conversations between IEP team members in determining service and support needs for individual students given their unique experiences, circumstances, and strengths. In any case, accelerating learning should involve establishing measurable goals and monitoring systems for student access and engagement, as well as social-emotional and academic learning.

Social-Emotional Support

The entire education community has been affected by the COVID–19 pandemic. The community has experienced high levels of stress from the disruption of daily lives and worries about the physical health of oneself and others, and many have been under financial strain. For many, especially children, living with these significant sources of anxiety in the household and community for prolonged periods of time threatens to have long-lasting impact on the body and brain. It is likely that each individual within the school community, especially students, will need additional support and systems.

LEAs should contemplate not only the physical health of their constituents in planning a return to in-person instruction, but also prioritize their mental health and wellness. LEAs should examine the availability and accessibility of mental health resources and supports for their students, families, and staff members. For more information and resources on creating supportive learning environments, please visit the National Center on Safe Supportive Learning Environment’s website .

There is a growing body of research proving that social and emotional learning (SEL) is fundamental to academic success. SEL should be woven into the work of every teacher in every classroom. Leading with SEL is essential because children need social and emotional support as they, like the adults around them, navigate the unprecedented challenges of alternative learning options, unfamiliar educational environments or expectations, and the transition back to in-person instruction. Further, SEL helps students access academic content through building essential self-management skills, resilience, and connections. For more information on SEL, please visit CDE’s web page for Social and Emotional Learning.

Progress Monitoring

Progress monitoring is an essential component of a multi-tiered system of support framework, allowing educators to identify whether students are responding to intervention and if additional support is needed. Data gleaned through progress monitoring are routinely used to design academic and behavioral goals within the IEP. Progress monitoring becomes even more critical as students return to school subsequent to COVID–19 school disruptions.

Educators should be prepared to gather new data upon students returning to school. This includes identifying whether or not students are able to demonstrate previously mastered skills and/or notable inconsistencies with academic performance or behavior. Teachers may gather data using informal and curriculum-based measures to determine baseline skills. This may include considering local assessment data, classroom performance data or observations, and rate of learning contextualized to the educational options being provided. The IEP team may wish to routinely undertake a review of IEP goals and progress upon the return to school, comparing that data to similar data collected prior to COVID–19 related school disruptions. LEAs and educators are also encouraged to use formative assessments to gauge learning and adjust instruction accordingly. For more information, please visit the CDE’s web page for Testing, which includes guidance on diagnostic and formative assessments.

As part of the return to school planning, LEAs should develop a systemic process for analyzing data to assess learning loss and to inform interventions and necessary adjustments to each student’s educational program. The National Center on Intensive Intervention (NCII) offers many resources and training modules on data-based individualization, which is a research-based process for individualizing and intensifying interventions through the systematic use of assessment data, validated interventions, and research-based adaptation strategies. More information can be accessed on the NCII web page .

Developing Comprehensive Individualized Education Programs

While developing comprehensive IEPs is a complex and challenging task in normal times, the process has become even more difficult with all of the variables brought on by the COVID–19 pandemic. Due to interruptions to in-person learning and learning loss, increased social and emotional trauma, and mandated timelines, it is vital that students with disabilities have programs in place to facilitate both personal and academic growth. It will be important for IEP teams to consider the contents of this web page. Specifically, the Guiding Questions for the Individualized Education Program Team section which outlines some important questions that IEP teams need to consider. The answers to these questions will be vital in setting new baselines for IEP goals and in considering appropriate accommodations and modifications. These questions will also help determine if frequency, location, and duration of services need to be adjusted for students’ current IEPs that have a prior IEP. Depending on the answers to these questions, re-evaluation may be warranted.

Alternative Dispute Resolution

The importance of LEAs and parents working together during this unprecedented time in education to address the needs of students cannot be overstated. With students’ best interests in mind, every effort should be made to resolve disagreements collaboratively and informally whenever possible. In support of these efforts, the 2021 Budget Act provided $100,000,000 on a one-time basis for allocation to SELPAs to support member LEAs in conducting dispute prevention and voluntary alternative dispute resolution activities to prevent and resolve special education disputes resulting from COVID–19 school disruptions2 in a collaborative and equitable manner. LEAs are to use this funding in collaboration with their SELPA to support the following:

• Early intervention to promote collaboration and positive relationships with families to prevent disputes through proactive communication, collaborative problem solving, and parent support activities.
  
  
• Conducting voluntary alternative dispute resolution activities to reach agreement and resolve issues that are not resolved through the IEP process.
  
  
• Work in partnership with Family Empowerment Centers or other family support organizations.
  
  
• Develop and implement plans to identify, and conduct outreach to, families who face language barriers and other challenges to participation in the special education process, and whose pupils have experienced significant disruption to their education as a result of the COVID–19 pandemic.

As students return to school, LEAs and families should use this opportunity to build and strengthen renewed partnerships with the common goal of accelerating learning and achieving progress for students. Parents of students with disabilities should reach out to their LEA and SELPA with any questions or concerns about their student’s education. Additionally, parents and families may contact California’s parent organizations offering support and resources to families of students with disabilities using contact information provided on the CDE website.

For more information on additional dispute resolution options, please refer to the December 22, 2020 CDE memorandum on COVID–19 and Special Education Dispute Resolution on the CDE website.

Conclusion

The CDE remains committed to supporting LEAs, families, students, educators, providers, and the entire education community in welcoming students with disabilities back to in-person instruction and ensuring their success. Should there be any questions related to the above information, please contact the Special Education Division at SEDinfo@cde.ca.gov. LEAs are encouraged to directly contact the appropriate Focused Monitoring and Technical Assistance (FMTA) Consultant using the contact information provided on the California Department of Education FMTA Consultant Assignments by Region web page.

Footnotes

1 Pursuant to Section 161 of AB 130, and for purposes of this funding, “Pupil” means an individual with exceptional needs, as defined in Section 56026 of the EC, during the COVID–19 school disruptions from March 13, 2020, to September 1, 2021, inclusive, or an individual who was referred for assessment pursuant to Section 56029 of the EC and whose assessment was delayed due to the COVID–19 school disruptions from March 13, 2020, to September 1, 2021, inclusive.

2 During the period of March 13, 2020, to September 1, 2021, inclusive.