Special Education in the Age of COVID-19: Current Laws and Challenges
In the realm of special education during the COVID-19 era, understanding the current laws and challenges is crucial. Explore federal, state, and local laws impacting individuals with disabilities, recent waivers, and unchanged timelines for IEPs. Addressing the equal access needs of students with disabilities is paramount.
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Special Education in the Age of COVID-19 Sarah Fairchild Devan Brothers Joshua Cruz
CURRENT AND RELEVANT LAW CHALLENGES AND BARRIERS TIPS AND STRATEGIES Q & A OVERVIEW
CURRENT & RELEVANT LAWS
I. Federal Laws Individuals with Disabilities Education (Improvement) Act of 2004 ( IDEA or IDEIA ); Section 504 of Rehabilitation Act of 1973 ( Section 504 ); Americans with Disabilities Act ( ADA ) Governing Law Federal Case Law (e.g. Endrew F. v. Douglas County School District) II. State Laws California Education Code III. Local Laws School Board Policies and Procedures
US Department of Education (USDOE) Waiver Authority Report (April 27, 2020) US Secretary of Education, Betsy DeVos, declined to recommend emergency changes to Section 504 or the Individuals with Disabilities Education Act, saying: The IDEA (Federal Law) There is no reason for Congress to waive any provision designed to keep students learning. NO SIGNIFICANT WAIVERS! With ingenuity, innovation, and grit, I know this nation s educators and schools can continue to faithfully educate every one of its students. Recognizing that implementation of the IDEA and the Rehabilitation Act can present difficult challenges during the COVID-19 pandemic, the Department of Education emphasized that schools and other recipients can and should find solutions for their students.
Federal timelines have not been changed: If a child has been found eligible to receive services under the IDEA, the IEP Team must meet and develop an initial IEP within 30 days of a determination that the child needs special education and related services. 34 C.F.R. 300.323(c)(1). Individualized Education Programs (IEPs) IEPs also must be reviewed annually. 34 C.F.R. 300.324(b)(1). IEP team may agree to conduct IEP team meetings through alternative means including videoconferencing or conference telephone calls Work collaboratively and creatively to meet IEP timeline requirements
The school must make sure that students with disabilities have equal access to those services or resources. If your school is providing education services or resources to any students it must provide access to those for all students. Equal access may include accommodations and modifications, such as: Materials in an accessible format, workpackets adopted to your child's unique needs and skill levels, access to e-books or audio books while at home, accessible online instruction adapted to their learning needs, telephone instruction or communication if needed; Providing school-purchased devices and assistive technology, Modifying the curriculum. Equal access may also include individualized special education instruction and related services, including speech, occupational therapy and behavior supports. EQUAL ACCESS
LOOKING FORWARD when school is open, If your child is medically fragile or at high risk and can't safely attend school TALK TO YOUR IEP TEAM! High Risk Students Some students will not be able to return to congregate settings for a while and have valid safety and health concerns, the child s needs could bemetthrough alternatives. Need a smaller/safer setting? Need home bound instruction? Need NPS?
Federal Timelines remain in effect A hearing officer may grant and parties can request an extension of timelines and a continuance of the proceeding. Statute of Limitations remain for Special Education Administrative Proceedings; Statute of Limitations for most Due Process Complaints are two years, meaning you must file your due process complaint no later than two years from the date when you knew or should have known that the violation took place. DUE PROCESS COMPLAINTS Mediations and Hearings moving forward virtually/telephonically
FEDERAL LAW SUMMARY Federal civil rights laws are intact (IDEA, ADA, and 504) No Significant Waivers to the IDEA (USDOE Waiver Authority Report, April 27, 2020) Student's entitlement to receive FAPE remains good law. to greatest extent possible each student with disability is to be provided special education and related services in their IEP or plan under 504 (USDOE Guidance, March 12, 2020); IEP team REQUIRED to make individualized determinations as to whether compensatory services are needed (USDOE Guidance, March 12, 2020); USDOE warned schools against refusing to offer any distance learning altogether to avoid its responsibilities under special education law (USDOE Supp. Guidance, March 20, 2020) Endrew F. (2017 US Supreme Court Case) remains good law reasonably calculated to enable a child to make progress appropriate in light of the child's circumstances
SB 117 Waives only State-Based Timelines (CA Education Code and other state laws); it cannot waive Federal Timelines or Laws (e.g. IDEA timelines) Special Education Timelines (Cal. Educ. Code) that SB 117 Waives: The right to receive an assessment plan within fifteen (15) days . The right to receive copies of your child s school records within five (5) business days after a request, before any IEP meeting, or before any due process hearing or resolution session (But, Federal IDEA timelines are still in tact, and require the District to provide these records within 45 days of the request); When your child enrolls in a new school district, the right to have your former school district send your child s records to the new one within five (5) business days. SB 117 (State Law) SB 117 also extends timelines under the Uniform Complaint Procedures (UCP) by the length of time a school is closed due to COVID-19. These timelines will start again once schools reopen and the regular school session starts again. SB 117 considers your school closed even if it offers independent study, distance learning, or both.
CALIFORNIA Dept. of Ed. Guidance (State Law) On April 9, 2020, the California Department of Educationreleased guidance: The IEP that was in effect at the time of physical school closure remains in effect, and LEAs should, to the greatest extent possible, continue to provide the services called for in those IEPs in alternative ways. Districts should hold IEP meetings where it is deemed necessary to address unique circumstances related to alternative service delivery. Districts do not need parent's written consent to provide those services previously agreed-upon now that they may be provided away from school; Parents still have the right to request IEP meetings or propose IEP amendments; In exceptional situations, LEAs may provide services in-person in order to maintain students mental/physical health and safety during periods of distance learning.
U.S. DOE has said State Complaints Can Proceed STATE CDE Compliance Complaints: Statute of Limitations Remain and have not been tolled; Statute of Limitations for a CDE complaint is one year, meaning you must file your complaint no later than one year from the date of the violation. COMPLAINTS & PROCEEDINGS
CHALLENGES AND BARRIERS
FAPE Standard Does Not Apply During School Closures FALSE Endrew F standard Does Not Apply During School Closures FALSE Remind the IEP TEAM that Federal Law has not changed and the District s obligation to provide a Free and Appropriate Public Education applies and that the team must ensure that the programming is reasonably calculated to enable student to make progress in light of the student s particular circumstances. MYTHS How can we do this??? GET CREATIVE!!
Distance Learning Plans are NOT IEPs Interim plans to provide services during Shelter In Place order. Lack of Consistency Among School Districts/LEAs DLPs need to be individualized to the student s individualized needs. The response from the District should not be a one size fits all approach. DISTANCE LEARNING PLANS Disagreement with a proposed DLP If you disagree with a distance learning plan document your disagreement and your individual concerns related to your student s needs during this time.
Some District have requested or obligated Parents to sign documents waiving their legal entitlements and rights to bring claims for this period in order to receive distance learning services. REQUEST TO SIGN WAIVERS X DO NOT SIGN! X If you are asked to sign away your rights, you should not sign. It is not permissible for a District to request a family to waive their rights as a mean to receive distance learning services. If this happens inform the school district you will be contacting the California Department of Education or consulting an Attorney.
Most students have not received teletherapy or virtual services before so it is unclear if the model will be appropriate for the student. Consent to implementation only due to lack of data on appropriateness of delivery model. SIGNING CONSENTTO PARTICIPATE IN TELETHERAP Y or VIRTUAL SERVICES Parameters of Teletherapy Read through the entire consent form and what is expected of you as a parent and expected as the student. Does the Parent need to be present during the session? Privacy provisions
Lack of Access to Technology Ask the school district for the technology to be provided Need for Assistive Technology Text/speech, google plug ins (read/write- co/writer), Augmentative Communication devices. Assistive Technology Assessment Consultation with the District s Assistive Technology Specialist TECHNOLOGY & LEARNING TOOLS ACCESSIBILITY Tools and Low Incidence Supports Need to consider how to provide other tools and manipulative for students. Example: Students with visual impairments need to provide increased text size documents, read document over the phone. Obtain tools privately and seek reimbursement
Timelines SB 117 Waives the right to receive an assessment plan within 15 days after referred for a special education assessment. The timeline will recommence when schools reopen. Federal Law still applies for obligation to assess which is 60 days. Limitations Portions of assessments need to be conducted in person (i.e., observations, portions of the standardized tests). Delays a student's access to services and IEPs especially when considering students are are in the process of trying to determine initial eligibility. Assessments What can be done? Considerations Does the team have any data that was completed? Complete portions of the assessment that do not need to be done in person (rating scales, interviews, record review) The considerations should be how to move forward to get the student what the need and what is appropriate. Work collaboratively to limit any delays.
We are not holding IEP meeting during this time FALSE District s are obligated to hold triennials, annual, and matriculation IEP team meetings at the very least IEP Meetings Consider technology needs to participate in meeting
SB 117 waived the timeline to receive a copy of your students special educational records within 5 business days of your request. Federal Law still applies if you request a student s education file the District must provide the documents without unreasonable delay (no more than 45 days after your request) or before any IEP or Due Process Hearing. RECORDS REQUESTS Other Educational Code that Apply: SB 117 DID NOT waive Parents right to request records under Education Code Section 49069.7 which provides that Districts must provide parents (whether their pupil receives special education or not) with copies of their student s pupil records within 5 business days following the date of the request.
May be allowed in exceptional situations where Districts may need to provide in person services in order to maintain the student s mental health/physical health and safety for purposes of supporting the student's access to the distance learning options. In these limited cases service providers may be considered Essential Critical Infrastructure Workers. The essential workers in the healthcare/public health sector include: Health care providers and caregivers (e.g. physicians, psychologists, mid-level practitioners, nurses and assistants, physical and occupational therapists and assistants, social workers, speech pathologists, and diagnostic and therapeutic technicians and technologists). Behavioral health workers (including mental and substance use disorder) responsible for coordination, outreach, engagement, and treatment to individuals in need of mental health and/or substance use disorder services. Workers who provide support to vulnerable populations to ensure their health and well-being including family care providers. Need for In Person Services
CDE guidance notes that Students shall be held harmless during thistime. Districts are handling this differently Some pass/fail Some choosing that the grade will not be less than what it was prior to the school closure but can improve the grade based on work done during the distance learning. GRADES CDE Guidance and the State Board of Education President stated, For students with disabilities, any changes to learning strategies or grading policies should, as appropriate, be done in conjunction with the student s Individualized Education Program to ensure that the changes respond to their learning needs. Examples: transition planning/post-secondary programming/is graduation appropriate at this time or should services be extended College Admittance and College Board Accommodations for AP courses/College Placement Exams
TIPS AND STRATEGIES FOR MOVING FORWARD
Flexibility, Reasonableness and Creativity! What should you do??
Keep a journal of services provided/or missed Chart Students current ability levels DATA, DATA, DATA Keep track of work product Record images of the student working Reminder: CA is a 2-party consent recording state Key: Progress or No Progress/Regression? Keep a notebook.
- Students Name: - Services Listed in IEP SERVICES LOG - Services Actually Offered: - Date: - Service type (OT/PT/Counseling/ Academic Instruction) - Duration of Service Offered: - Amount of Time Student Accessed this Service and Quality of Engagement:
IEP Meeting During Closure You can request an IEP Meeting to Discuss Distance Learning
Extensions for assignments, videos with accurate captioning or embedded sign language interpreting, accessible reading materials, video conferencing services , getting a translator or translations Telehealth service delivery options: speech and language therapy, OT, mental health can be provided through distance learning such as phone calls and video conferencing. More 1:1 time? Ask for it, document the need. Assistive Technology - does family or student need training? Manipulatives Determine how to use the support of 1:1 aides or other in person services Parent Training Modifications & Accommodations to Request
At IEP meeting, Interim Educational Plan ChangesONLY I believe the last agreed upon IEP should be implemented to the maximum extent and only if those services are impossible, do I consent to the described services for a limited amount of time of physical school closures. Do not give up right to last agreed upon IEP services and supports upon return If you believe Distance Learning Plan will not result in benefit to your child, state so in writing and on record in IEP and reserve your right to seek remedies (reimbursement, compensatory education) at public expense. Can provide limited consent (if asked) to interim distance learning plans. I don t agree that the services are sufficient, but I consent to the implementation of what is offered. If you CANNOT implement interim plan state why: working, illness, unable to access technology, language issues. Audio Record IEP with 24 hours advance notice. Limited Consent At IEP Meeting
Consider the impact of Closure and Provide Documentation to the IEP team Are there indications that there was regression during the closure? Has your student lost any specific skills DATA: How long was school closed? Did school district offer instruction? What method was used? HOW MUCH? (Keep Log or Notebook) Were the alternative methods of instruction and services as beneficial for the student as the methods normally used? Was your student engaged and able to access the instruction and services during the closure?DOCUMENT THIS Were any private services provided (frequency, duration etc.) If so, what amount of instruction and services did the student receive? Did you provide services in addition to district offered services? If yes, the frequency, duration and effectiveness. If ESY is available and would be meaningful, ask to be provided extended school year services due to regression. Analyzing Impact of Closure
What if district says it does not have ability to provide needed services in the way that the student needs it? Unilateral Services Is there a private or nonpublic agency that is able to provide the service the student needs? Ask the district to fund it. If unilaterally provided: must provide unilateral placement notice 10 business days before starting private services
Tell the IEP team about whether the closure and/or virus CAUSED any new special education needs-- (e.g. emotional, medical, academic) such that additional services are needed or need to be reevaluated Disabilities Caused by or Exacerbated by COVID Potential disabilities created by or during pandemic might include physical disabilities caused by COVID-19 infections (e.g. respiratory ailments) or emotional disabilities caused by economic hardship or distancing requirements (e.g. anxiety/depression). Report concerns to school staff
Compensatory Education & Remediation through Prospective Services Compensatory Education & Remediation based on updated Present Levels following Closure Compensatory Education will often be necessary unless the Districts provide all IEP services as described in the IEP. U.S. Dept of Ed: where there has been an inevitable delay in providing services.. IEP teams must make an individualized determination whether and to what extent compensatory services may be needed. Talk with your team about plans for compensatory education (non public agency tutoring? Extra services built into school day?)
Consider re-evaluations when schools re-open to determine impact and what is needed to make up for loss or regression. Separate from compensatory education. Ask for re-evaluation upon re-opening. What are new levels of academics? New levels of behaviors? You have a right to look at what services need to be provided prospectively taking into consideration the impact on the closure and/or new needs of students. New Present Levels of Performance / Circumstances
ASK FOR PLAN FOR NEXT CLOSURE Likely to Happen Again .. ARTICULATE A PLAN THAT WILL WORK BETTER NEXT TIME EMAIL/PRESENT A WRITTEN LIST OF WHAT A WORKABLE PLAN MIGHT BE NEXT TIME (number of minutes, time of day, supports that are necessary to make it work).
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