In a previous Legal Update, we discussed the importance of ensuring that regular education teachers, including substitute teachers, have access to their students’ IEPs and are aware of the specific accommodations and/or modifications that must be provided pursuant to the IEP in the regular education setting. This is especially critical during the current COVID-19 pandemic, when school districts will likely utilize substitute teachers more than usual due to teacher absences, quarantines, or leaves of absence.
Under the IDEA, school districts have an obligation to ensure:

1. The child’s IEP is accessible to each regular education teacher, special education teacher, related services provider, and any other service provider who is responsible for its implementation; and
2. Each teacher and provider described above is informed of: (a) his/her specific responsibilities related to implementing the child’s IEP; and (b) the specific accommodations, modifications, and supports that must be provided for the child in accordance with the IEP.  34 C.F.R. § 300.323(d).

While our previous Legal Update focused on the requirements of IDEA, school districts also should be aware that they have similar obligations under Section 504.  In a recent 504 complaint decision, the Office for Civil Rights (OCR) found that a school district may have denied a student a free appropriate public education (FAPE) under Section 504 by failing to make substitute teachers aware of the accommodations required by the student’s 504 plan.  OCR explained, “Regardless of whether a Section 504 Plan includes a provision that substitute teachers be given notice of the plan, Section 504 requires that all staff working with a student who has a 504 Plan, including substitute teachers, consistently implement the plan.  If this does not occur and, as a result, the student does not receive a FAPE, it would be a violation of Section 504 and Title II [of the Americans with Disabilities Act].”  Johnston County (NC) Pub. Schs., 120 LRP 11396 (OCR 10/17/19).

Notably, OCR relied on email correspondence between the building administration and the parent in making its decision.
In light of the above, we recommend the following:

1. Advance arrangements should be made to provide substitute teachers with access to portions of any IEPs, BIPs, or 504 plans that they are expected to implement.  For IEPs or 504 plans with built in contingency plans as recommended by DPI, it should be made clear which contingency plan is currently in effect.
2. Substitute teachers should be given the opportunity to ask questions regarding the implementation of 504 Plan or IEP components.  A case-by-case determination should be made as to whether a substitute teacher (or aide) should receive specific guidance or training before assuming their duties
3. Steps should be taken by the classroom teacher or case manager to confirm that the IEPs and 504 plans have been appropriately implemented, and any parent concerns regarding implementation should be taken seriously.  Telling a parent that their child had a substitute teacher on that day does not excuse any lapse in implementation.
4. Emails to parents and internal emails regarding the implementation of IEPs and 504 plans may be reviewed by parents, their lawyers, administrative law judges, the Office for Civil Rights, and others in the event of a pupil or public records request, due process hearing, or OCR complaint.  Emails should be carefully drafted to avoid misunderstandings.  Consider whether an IEP or 504 Team meeting or other in-person meeting to discuss the parent’s concerns is appropriate.