Dear Special Education Directors,

Despite the many challenges facing school districts and programs this year as a result of the continued impact of COVID-19, educators and educational leaders across the state have worked diligently to provide full-time in-person learning. ODE appreciates the efforts of Oregon’s educators to help all students have a successful 2021-22 school year. We also recognize that, as there has been throughout the pandemic, there continues to be a disproportionate impact for students experiencing disability. Individualized COVID-19 Recovery Services is one means by which IEP teams can address this disproportionate impact and ensure that every eligible child receives a free appropriate public education (FAPE), as is their right under the Individuals with Disabilities Education Act (IDEA). 

Recently, the U.S. Department of Education’s Office of Special Education Programs (OSEP) reiterated that “the Department expects States to ensure that local educational agencies are complying with IDEA’s requirements, including child find, evaluations and reevaluations, and appropriate IEPs” (OSEP Letter to State Directors, 11/10/21). Accordingly, part of the purpose of this message is to remind districts and programs that, regardless of the challenges associated with the pandemic, including workforce shortages, school districts and programs must continue to meet all federal and state requirements; that includes, the obligation not to engage in unlawful discrimination¹ and to ensure that each eligible student has a FAPE made available to them. ODE has also developed this policy letter outlining ODE’s position related to implementation of the IDEA given current circumstances. In instances where FAPE has not or may not have been provided, IEP teams will also need to consider whether and what compensatory education is required.

ODE recognizes that workforce shortages require complex, multi-faceted solutions that necessitate coordination and collaboration across sectors and, as such, are not easy problems to solve. Therefore, ODE remains willing to partner with any school district, program, or agency to help work through such challenges, and help them to meet their obligations under federal and state law. But, school districts and programs must ultimately ensure that they deliver educational services in a way that complies with those laws.

Next Director's Call

In the next Director’s call, on December 8, 2021, ODE plans to spend a significant amount of our time together providing space for Directors to engage with each other around creative solutions to staffing shortages. These discussions will be small group breakout sessions where Directors can thought-partner with each other and share the innovative ideas that have lessened the challenge in their schools. 

Given this topic of discussion, and in recognition that solutions to staffing shortages extend far beyond special education personnel, you may wish to have others from your district on the call for this discussion. Additionally, the CEEDAR Center has developed a toolkit resource (Educator Shortages in Special Education: A Toolkit for Developing Local Strategies) that may be useful in developing short-term strategies to meet local needs, while also planning for long-term reduction in shortages. If you decide to attend with colleagues, it may be beneficial to think through the potential of the strategies in that toolkit prior.

Mitigating Impacts of Staffing Shortages

As a result of staff shortages, some programs that serve students experiencing disability may be considering changes to the length of the school week. Districts and programs should carefully consider their programming to ensure that they avoid discrimination, pre-determination, or other violations of the IDEA, the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973, and/or applicable state laws. ODE strongly encourages districts and programs to seek legal advice to ensure that any changes made due to staffing shortages are appropriate.

Directors who face staffing shortages should consider the following practice recommendations:

• Communicate early and often with parents and families, but save IEP team decisions for the IEP team.
• Be proactive in problem solving. When in doubt, convene the IEP team.
• Ensure placement decisions are appropriately individualized and conform to the Least Restrictive Environment provisions of the IDEA.
• Avoid decisions that treat students experiencing disability as a singular category. Individualization is the heart of the IDEA.
• Avoid situations, including schedule impacts and access to in-person instruction, where only students experiencing disability are negatively impacted due to staffing shortages.
• Utilize federal resources (e.g., ESSER, ARP IDEA supplemental allocation) to support the acquisition and training of additional staff.
• Reach out to your County Contact to brainstorm potential solutions. 

As always, if you have questions or we can be of support to your district/program, please feel free to connect with me, our Directors, or your County Contact.

Sincerely,

Tenneal Wetherell
Assistant Superintendent
Office of Enhancing Student Opportunities

¹As defined in OAR 581-021-0045, discrimination refers to “any act that unreasonably differentiates treatment, intended or unintended, or any act that is fair in form but discriminatory in operation, either of which is based on age, disability, national origin, race, color, marital status, religion, sex or sexual orientation.”