Special Education During COVID-19

Analysis of Current Rights and District Obligations

I will divide this into four frequently asked questions. If you have questions about one of the topics, please type them in. I will do my best to answer questions at the end of each topic.

Frequently Asked Questions

  1. When will my child start receiving special education?
  2. Does the District have to implement my child’s IEP?
  3. Should I change my child’s IEP?
  4. What happens if my child cannot access the curriculum?

Disclaimer

Please do not construe this as legal advice.

This is my analysis of rights and responsibilities in the current situation.

Understand that this is an unprecedented situation, so no one knows the answers to these questions with certainty.

When will my child receive special education?

Most California attorneys in the special education field seem to agree that students with special education needs will be entitled to services when general education students start receiving services. This view is largely based on guidance from the California Department of Education.

Most schools are moving to mandatory distance learning for all students sometime this month. Once distance learning becomes mandatory (as opposed to optional), it will be safe to assume that students with special needs should begin receiving instruction and services.

CDE Guidance

  • If a district is providing services to general education students over the closure, students with disabilities must have "equitable access" to those services "with services appropriately tailored to the individualized needs of students, to the greatest extent possible."
  • If a district is providing distance learning as a substitute for classroom instruction to general education students, the district must "must create access to the instruction for students with disabilities, including planning for appropriate modifications or accommodations based on the individualized needs of each student."
  • Educational support services should be "commensurate" with the student’s IEP to ensure educational benefit.

U.S. DOE Guidance

The U.S. Department of Education guidance from March 2020 requires that students with special needs receive equitable treatment once general education students begin receiving services.

Does the District have to implement my child’s IEP?

  • Probably not perfectly
    • We expect that judges will go easy on districts that have made at least some effort to implement IEPs.
  • Let’s reframe the question.
    • Even in normal times, if a district fails to implement an IEP, parents are not entitled to anything unless they can show that their child has been denied a free, appropriate public education.
    • Instead of focusing the question on the district’s actions, let’s focus on your child’s needs.
    • Instead, let’s ask:
      1. How can my child’s unique needs be appropriately met in this unique situation?
      2. What happens if my child’s needs are not met?

How can my child’s needs be met?

  • An optimistic spin: This gives parents an opportunity to explore and develop new ways of individualizing their child’s IEP.
  • Every parent should email teachers and other IEP team members to ask how to remotely support their child’s needs.
  • Make a list of goals for this time and share it with providers. The goals may be different from some of the current IEP goals. Ask for providers for feedback on your goals.

Basic requests

At the very least, Districts should provide tools necessary for you to work with your child. For example:

  • If your child uses a communication device at school, make sure you have one at home and get training to use it properly;
  • Request curriculum as well as instructions on how to implement it;
  • Request regular communication with special education teachers to ensure that the curriculum remains effective and meaningful.

Should I change my child’s IEP?

  • Stay Put:
  1. Stay put is effectively an order from a court that tells us what placement a student should have while the parents and district work out a disagreement over what placement is appropriate for the student. The last agreed-upon and implemented IEP will govern the student’s placement during the dispute.
  2. This is valuable to parents who like their child’s IEP.
  3. If you change your child’s IEP during COVID closures, the stay put will change. Those changes will remain in effect when school starts after COVID-19 closures.
  • Additional considerations:
  1. If you want your child’s old IEP to remain in effect when school resumes, the safest option is not to consent to a new IEP. However, that can create complications.
    1. You may want to change the IEP to reflect new goals, services or service delivery methods.
    2. Every family will have to weigh the pros and cons of changing an IEP that they like.
  2. If you want to resume the services and placement in the previous IEP when school resumes, clearly indicate that in the IEP Team meeting notes.

What if my child cannot access the curriculum?

  • The realistic spin: many students will not be able to progress with distance learning.

Document every attempt you make to implement distance learning.

  1. Try to use whatever tools the District provides.
  2. Request additional tools if the current tools are not working.
  3. Communicate your attempts via email.

What if my child cannot access the curriculum remotely?

  • Legal standard:

The current legal standard used to determine whether a district deprived a student of a free, appropriate public education is whether the student is making progress in light of his or her circumstances.

We may see judges give more leeway to the districts on this.

Still, if a student regresses or fails to make any progress, he/she may be entitled to compensatory education. This is why it is important to document every attempt you make to implement distance learning.

Compensatory Education: Services that aim to place students in the position they would be in if the district had provided appropriate services in the first place. Such services can include tutoring, speech services, OT services, etc. Families typically access comp ed services after school, on weekends or during school breaks.

  1. Determined on a case-by-case basis.
  2. Parents may want to consult with an attorney:
    1. Be very cautious about signing settlement agreements prepared by districts without speaking with an attorney.
    2. When agencies that provide compensatory services open after COVID-19 closures, consider consulting with us before paying for such services if you will want to seek reimbursement from the district.

Other question ideas

What if the District is supposed to evaluate or is in the middle of evaluating my child?

Call to action

Secretary DeVos will be making recommendations for congress regarding whether to waive IDEA requirements. We hope everyone will contact your senator and urge them not to agree to waive the IDEA.

Please go to copaa.org

first

Go to https://www.copaa.org/page/covid-19

next

Scroll down to the bottom of the gray box on the right

Then

Click to find your senator or representative

now

Use the left drop down menu to choose your state and write your senator and representative

Thank you

for viewing our presentation.

Please contact us for a free consultation:

Law Office of Meagan Nunez
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San Diego, CA 92108

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