For the past eight months, school districts around the country have spent the bulk of their time and resources trying to manage a pandemic, keep students and staff safe, and deal with public perception issues in the media and political arenas.
Even with all of that piled on their plates, districts and the superintendents who lead them must keep in mind the many impacts that COVID-19 is having on their special education students. Because what has happened already and what may happen as districts remain in social distancing mode could lead to litigation down the road, here are six questions superintendents should ask their special education directors to prepare for challenges in the near future.
1. How many reevaluations or evaluations are you behind or overdue on? Although U.S. Education Department guidance has given states the flexibility to establish exceptions to timelines for legal purposes, evaluations and reevaluations need to take place as a necessary step to providing a Free and Appropriate Public Education under the Individuals with Disabilities Education Act. Districts that have put off evaluations and reevaluations for COVID-related reasons will have a backlog to deal with – and pay for. Options are available, and ED has encouraged districts to “investigate all appropriate assessment instruments and tools to determine if some can be administered or completed remotely.” Nonetheless, knowing how many evaluations and reevaluations are waiting is necessary for district leadership to appropriately allocate staffing and finances to play “catch up.”
2. How is child find working out in our district? Before even getting to evaluations, understanding what the district is doing to locate and identify students with disabilities is the foundation for the rest of the special ed program. Following early ED guidance, most child find activities during COVID-19 went virtual. That option can work well under certain circumstances, but the inability to see children in person is likely preventing districts from living up to the IDEA’s full child find purposes. Not being able to gauge social interaction has prevented the identification of students with disabilities, making communication with parents and families as important as ever. What district leaders should know is what tools and strategies special ed staff is using to make sure child find takes place despite pandemic limitations. While ED has indicated flexibility in IDEA requirements to districts, state educational agencies and courts might take a different approach. So, having a good handle on what the district has been doing for child find can help show maximum IDEA compliance under the circumstances.
3. How many parents have threatened or moved forward with compensatory education, litigation, or due process complaints? While ED has encouraged parents and districts to work collaboratively to resolve disagreements and has also explained that schools may not be able to provide services they normally would due to the pandemic, legal requirements still apply at federal and state levels. Because of how the pandemic has disrupted the provision of services to special education students, compensatory education will be a reality in the next phase of most districts’ “new normal.” Compensatory services are required to make up for any skills that may have been lost when a district couldn’t provide FAPE. Some parents will pursue legal channels to secure compensatory services. Whether a district has in-house counsel or seeks outside legal help, knowing what the numbers are can ensure adequate preparation for districts’ “day in court” and offer a well-documented record for just how much compensatory education a district must provide.
4. How many students in special education have no internet access? The digital divide is a reality of American life that has come into focus thanks to COVID-19. Students without internet access across the country have fallen behind their tech-connected peers. In the special ED context, students that cannot connect with their educational program have likely been denied FAPE in violation of IDEA requirements.
5. How are OT/PT and speech and language services being provided? The good news about a 2020 pandemic is that more technology is available than ever, and districts have many options for delivering services remotely. Nonetheless, ED has emphasized that no matter what instructional delivery approach is chosen, districts and their IEP teams must provide FAPE. If in-person services aren’t possible, the FAPE duty still applies and special ed staff must work with parents to meet children’s needs.
6. Have you begun creating ideas for extended school year for 2021? ESY services are special education and related services that are provided: 1) to a child with a disability beyond the normal school year; 2) in accordance with a child’s IEP; 3) at no cost to the parents; and 4) in a way that meets state standards. An important point about ESY services is that they are intended to be prospective and aren’t the same as compensatory education. ESY doesn’t make up for past FAPE denials, but is a way to ensure FAPE going forward. What must happen to appropriately develop ESY services is that IEP teams must determine -- based on the individual needs of the child and not the category of disability -- that the child needs an extended school year to receive FAPE. Because summer 2020 may have found schools unable to provide some or all ESY services, ED has noted that, in the post-pandemic future, districts should consider providing ESY services during the normal school year over school breaks.
Frank Ferreri, M.A., J.D. writes about education legal issues. He has authored books, pamphlets, and training materials on the IDEA, Section 504, and the Elementary and Secondary Education Act. Connect with Frank on LinkedIn.
To learn more about Thomas Guest and his organization Matchwell, visit www.wematchwell.com/schools. Thomas Guest is also Co-Founder and Board Chair of the YES Initiative – a youth development organization serving the underserved in Pittsfield, MA.