Coronavirus and Schools: More on the NOREP v. The Letter—and a Model Letter to Boot!
CORONAVIRUS UPDATE
For those of you whose “continuity of education” plans will include new instruction (as opposed to optional “enrichment” activities), we have recommended notifying parents of your specific plans for their children with disabilities by using a NOREP.
Many have expressed concern with this recommendation for many reasons, some of them valid—others not so. Many of you are inclined, or were advised, to use a letter to inform parents of your plans for their children with disabilities. Attached hereto is a model letter that we have prepared for those of you who are moving in that direction. This letter, like the NOREP recommendations we have already offered, are intended as models. We are in uncharted water, and anything will be better than nothing!
Remember, we are only recommending the use of a NOREP when the continuity of education you are planning to implement involves new learning. When that is the case, students with disabilities will be entitled to services that at least attempt to satisfy the FAPE mandate of the IDEA. When services are optional and do not involve new instruction, your “continuity of education looks much more like an extracurricular activity, which must be offered in accessible formats to ensure meaningful access but need not rise to the level of a full FAPE. You will still need to provide some written notice of what those accessible activities will be, but that notice need not come in the form of a NOREP, or even a formal letter of the sort we are proposing here. (Note, however, that the less you offer in your “continuity of education” plan, the more compensatory service you will likely owe after the school closures end).
For those of you still on the fence about whether to take the NOREP path or the letter path, we want to address some of the concerns we have heard about the NOREP:
NOREPs are for changes in placement, and we are not changing the child’s placement. Despite their awkward title, and the inclusion of the word “placement” therein, NOREPs actually are not just used to change placement. The NOREP is the form that Pennsylvania requires its LEAs to use to provide “prior written notice” to parents. “Prior written notice” is required under the IDEA whenever an LEA proposes or refuses any “action” related to the identification, program, or placement of, or the provision of a free appropriate public education to, the child. WE are certainly proposing an action related to the provision of FAPE to our students in this context. It is a temporary action—and must be carefully identified as such—but it is an action nonetheless.
NOREPs change pendency. They certainly can do so, but so can a letter, and so can any change in status whether it is done with or without written notice. The courts have ruled in multiple cases that pendency can exist in a particular setting even if the LEA did not develop an IEP for, or provide prior written notice of its intent to place a student in, that setting. That is why in both our recommended NOREP and in our recommended letter, we include language clarifying that the interim virtual learning the LEA is offering is temporary and is not intended to change the child’s existing IEP or placement.
Parents can request a hearing to challenge a NOREP. Parents can request a hearing to challenge anything that an LEA is doing or refusing to do, regardless of whether the parent learned of it by NOREP, by letter, or by any other means. True, the NOREP very unhelpfully reminds parents that they can request mediation or a hearing. And if parents pursue a hearing, so what? “Pendency” would exist in a program that does not and cannot currently exist during school closures. So the complaining parent would get nothing for their child while they present to a hearing officer their concerns about temporary services. And the hearing officer is going to do what? My guess is we’ll get a sympathetic hearing about the adequacy of our interim services. Even if we don’t, attempting to obscure any reminder to parents that they can pursue due process is unlikely to prevent those parents who are inclined to fight from doing so. The parent bar has been aggressively advertising their services since the governor issued his first closure order.
NOREPs are too difficult to write, especially given our cumbersome IEP writing software, and the letter is easier. This point is well taken. If it is true, use the letter!