The US Department of Education has issued numerous guidance documents that help families and schools understand their rights, responsibilities, and obligations regarding special education during the COVID-19 pandemic, regardless of whether schools are operating remotely, in a hybrid model, or in-person.
Hot Topics in Special Education During the Pandemic
Evaluations: School districts may not waive a 60-day timeline for an evaluation. The initial evaluation has to be conducted within 60 days of receiving consent, or a different timeline if the state has established their own. Districts may not refuse conducting a virtual evaluation. If in-person evaluations are not possible, schools should make good faith efforts to conduct assessments virtually, or via other comparable methods. Schools can do this by investigating all appropriate instruments and tools to determine if some can be administered remotely. Districts can also work with the developers of their current assessment instruments, to determine if those instruments can be administered remotely (without significantly affecting the validity and reliability of the results.)
Developing the IEP: The U.S. Department of Education issued guidance stating that the requirements for IEP meetings are not changed during the pandemic. All children with disabilities must continue to receive a free, appropriate public education, and have the chance to meet challenging objectives. The parent and district may agree not to meet to make IEP changes and can develop a written document to amend or modify that current IEP, as long as both agree and it is consistent with state law, rules and regulations. IEP teams must continue to identify how the special education and related services included in a child’s IEP will be provided.
FAPE and LRE: Districts must ensure that students have access to equipment and connectivity for remote virtual learning. This requires the district to consider what assistive technology and other special education and related services are needed to ensure that the student is provided with a free, appropriate public education (FAPE) in the least restrictive environment (LRE). IEP team considerations of strategies to address challenges with connectivity include the possibility of providing mobile hot spots to students with disabilities who don't have good connectivity in their home.
If a student is not benefiting from online instruction, the US Department of Education reminded states and districts that no matter what primary instructional delivery approach is chosen, they and the IEP teams remain responsible for ensuring that FAPE is provided to all children with disabilities, including to students with significant disabilities.Even students who haven’t received extended school year services typically may be eligible for ESY now. Many students didn’t need ESY when they had access to in-person education and related services but now might meet the criteria for receiving ESY services due to having received virtual services this and last school year.
Remote Learning: Districts may not require parents to sign a waiver of FAPE and IEP implementation if they “opt” for remote learning. This is because schools may not require parents of students with disabilities to waive any rights afforded to students under the Individuals with Disabilities Education Act (IDEA), or Section 504 of the Vocational Rehabilitation Act as a condition of receiving a free, appropriate public education. If a district’s plan involves only remote learning, and a parent is concerned that their child cannot benefit from remote learning, it’s the responsibility of the IEP team to come up with a plan that allows the child to benefit from remote instruction. Some districts are inappropriately requiring families to select one option at the beginning of the school year, and will not allow any changes, even if the selected option is not working for their child. Under IDEA, a parent may request an IEP meeting at any time to discuss needed changes to the IEP, to ensure that their child is receiving FAPE.
Home Instruction vs. Remote Learning vs. Homeschooling: Some families are confused about the differences between remote instruction, home instruction, and homeschooling. Remote instruction, or virtual learning at home, simply means that the student is home while being educated virtually, just like students without disabilities. Home instruction is a placement on the continuum of placements under IDEA. It is a placement option whether or not in-person schooling is typically available. A student may need home instruction because of his or her own individual health status, for example, not just during a COVID-19 pandemic.
Homeschooling is when parents take legal responsibility for educating their child, as opposed to having the school district assume that responsibility. In many states, this means that the family is also responsible for related services like physical, occupational, and speech therapy.
Safety and COVID: Some families are concerned about requiring their child to wear a mask to participate in in-person learning. Schools should make reasonable modifications in their policies, practices or procedures, including any that address the use of face coverings, when those modifications can be made consistent with the health, safety, and well-being of students and staff, and are necessary to avoid discrimination based on disability.
Other parents are concerned that their child may be disciplined if they do not comply with COVID-19 safety requirements like wearing a mask or maintaining physical distancing. Again, school personnel may consider any unique circumstances on a case-by-case basis when determining whether change in placement, such as suspension, is appropriate for a child with a disability who violates a code of student conduct. This is true whether the behavior occurs in school, or during virtual instruction at home. Students with disabilities should not be punished for behavior that is caused by their disability, or caused by the fact that they did not receive the services in their IEP.
Compensatory Services: Some families wonder if students with disabilities who missed services due to the pandemic are eligible for compensatory services. If a child doesn’t receive services after an extended period of time, the school must make an individualized determination whether, and to what extent compensatory services may be needed, including to make up for any skills that may have been lost. The IEP team, which includes parents, should consider when discussing the IEP, the possible need for compensatory services. IEP teams should consider the effect of the closure on the child. Did the child regress during the closure from previously-attained skill levels targeted in his or her goals? Did the child lose critical skills, and will it take a long time to regain? Did the child fail to progress enough to realize meaningful progress toward annual goals by the conclusion of the year for which the current IEP was written?
Waivers: Nothing in IDEA has changed and families may not be required to sign a waiver of their child’s right to a free, appropriate, public education in the least restrictive requirement as a condition of receiving services. If parents are asked to sign waivers, they can contact their Parent Center (see Resources). If that is unsuccessful, families can use the formal dispute resolution mechanisms in IDEA, such as mediation, requests for complaint investigation, or requests for due process hearing.
Transition: Districts are struggling with how students can access transition to adult life services during the pandemic. Usually, in developing the transition plan, there is discussion of community placement at work sites, internship sites, etc. It is an individualized and team process that includes the parents and the youth with the disability, as opposed to a unilateral process based on a blanket policy under the pandemic. The National Technical Assistance Center on Transition (see Resources) has useful resources, including transition-focused instructional services, online instruction resources and tips, transition assessment and planning resources, employment preparation-focused instructional resources, and transition resources focused on students with complex needs that can all be provided virtually.
Some students may need transition services beyond the planned academic year or initial date of exit from special education. The IEP team can convene and change their decision about the age of graduation. In terms of extended education beyond the age of eligibility, the discussion is more likely to be focused on the issue of the need for compensatory education services.
Dispute Resolution: Some dispute resolution procedures and mechanisms can be waived during COVID-19. For example, a state education agency is permitted to extend the 60-day time limit for resolving a state complaint due to circumstances related to the pandemic, but only on a case-by-case basis. The regulations specify two reasons for extending this 60-day time limit: if exceptional circumstances exist with respect to a particular complaint, or if the parent or individual organization, if mediation or other alternative means of dispute resolution are available to the individual organization under the state procedures, and the public agency involved agree to extend the time to engage in mediation or other alternative means of dispute resolution.
Families and districts can use the Creating Agreement tool (see Resources) to work together towards solutions. However, some parents may have to use the formal dispute resolution mechanisms in IDEA, discussed above. This would also be used, if needed, to obtain compensatory services. It is important for families to be aware that some states like AK, CT, DC, DE, GA, MN, NJ, NY, and WV have put the burden of proof on the district in due process hearings and court cases, but for most states, it is on the family.
Concerns regarding the provision of special education services during COVID-19 include evaluations, IEPs, FAPE, remote learning, compensatory services, transition, and procedural safeguards. Districts and families need to be aware that the requirements under IDEA remain, and that students with disabilities still must receive a free, appropriate, public education even during the pandemic.
[Adapted from CADRE webinar “Got Back to School Questions? We’ve Got Your Answers” presented by Diana Autin.]
ABOUT THE AUTHOR:
Lauren Agoratus, M.A. is the parent of a young adult with autism and medical complexity. She serves as the State Coordinator for Family Voices-NJ and as the central coordinator in her state’s Family-to-Family Health Information Center. FVNJ and F2FHIC are both housed at the SPAN Parent Advocacy Network (SPAN) at www.spanadvocacy.org
Read the article here.