Patrick G. Radel, Esq.
Do you have a milestone that signals that autumn is approaching? For me, it’s the start of Buffalo Bills training camp at the end of each July. I’m reminded that summer is more than half over and pretty soon it will be time for fall (and football). Any day now, we’ll be seeing backpacks, notebooks, and highlighters stocking store shelves with “back to school” signs as far as the eye can see.
After nearly a year and a half of a global pandemic, we approach the start of another school year with uncertainty and anxiety, but with hope for something resembling a traditional school year. There are certainly reasons for concern that many students, including (in particular) students with disabilities, were harmed by pandemic-related disruptions to their education and may struggle to transition back to a more regular school routine.
The good news – Congress is providing billions of dollars to school districts to address pandemic-related instructional loss and promote a safe and successful return to school. The challenging news –the devil is in the details, as always. Advocacy will be needed to ensure the funds are invested effectively and used to include and support vulnerable students, including students with disabilities, as Congress intended.
This is my summary of the recent federal and state guidance and some suggestions for setting students with disabilities up for success.
COVID Did Not Change the Law
IDEA (the main federal special education law) guarantees students with disabilities a range of educational rights, including the right to a Free Appropriate Public Education ("FAPE").
FAPE is: (a) an individualized educational program (“IEP”), (b) developed by a team of people knowledgeable about the student’s strengths and needs, (c) incorporating meaningful participation from the student’s parents, that is (d) reasonably calculated to produce progress toward education, employment, and independent living.
The student's progress must be “appropriately ambitious in light of [his or her] circumstances.”
Congress considered changing IDEA in response to the COVID crisis, but decided not to. The U.S. Department of Education has said (more than once) that students with disabilities remained entitled to their educational rights, including their right to a FAPE, during the pandemic.
As such, schools should not be offering the excuse/explanation that “all students suffered” because of COVID. Students with disabilities are entitled to special legal protections and have unique legal rights, including the right to a FAPE.
Schools must give individualized consideration to determine whether each student with a disability received a FAPE during the pandemic. This involves asking whether the student was able to access instruction or services in a learning environment other than full in-person learning (e.g. fully or partially remote). It means considering whether the student (a) made meaningful, documented progress toward her individual goals or (b) experienced regression and/or developed new challenges during the pandemic period. If the student did not make progress, or regressed, he may be entitled to compensatory services (see below).
Although federal and state guidance suggested that schools could be “flexible” in service delivery during the pandemic, federal law itself was never changed.
In sum – whatever “flexibility” might mean; it did not create a “FAPE-free” zone during COVID. Congress never granted schools a waiver from their obligation to meet the individual needs of students with disabilities. In fact, as discussed below, Congress gave schools billions in additional funds precisely so they could comply with their obligations under the special education law.
Schools are Receiving Billions in COVID Relief Funds
As part of multiple COVID relief/stimulus laws, Congress placed several hundred billion dollars into the Elementary and Secondary School Emergency Relief Fund (“ESSER Fund”). The U.S. Department of Education has made it clear that priority in using these funds should be given to addressing “the disproportionate impact of COVID-19” on vulnerable student populations, including students with disabilities.
According to the Department of Education, examples of possible (and encouraged) uses of ESSER Fund monies include:
activities and services designed to address the unique needs of students with disabilities, including assistive technology, adaptive equipment, professional development for school personnel from outside experts on “scientifically based academic and behavior interventions, including scientifically based literacy instruction”
funding implementation of evidence-based interventions that respond to students’ social, emotional, and academic needs (including, but not limited to, supports and services identified on students' IEPs)
funding compensatory services for students with disabilities who did not receive a FAPE (discussed further below)
hiring educators, counselors, nurses, social workers, and other support staff
Compensatory Services for Students Denied FAPE during the Pandemic
Compensatory services are traditionally provided to a student with a disability when a school district is determined to have violated its obligation to provide a free appropriate public education (“FAPE”).
Guidance from the U.S. Department of Education and New York State Education Department has said that compensatory services should also be provided to students with disabilities to make up for lost educational time and/or services due to the pandemic.
Students with disabilities are not automatically entitled to compensatory services because they received remote instruction and/or missed programming or related services (e.g. speech therapy, occupational therapy, physical therapy) during the pandemic.
However, the school district should have been tracking what programs and services were being provided, how they were being provided, what services were missed, and whether the student was able to effectively access, and benefit from, the programs and services that were provided.
If services were missed and/or if the student was not able to effectively engage with remote learning, the student should be a strong candidate for compensatory services.
The school’s IEP team should look carefully at the data, including parent input, to determine whether the student made less than expected progress toward her goals, regressed in skill or achievement levels, and/or exhibited new needs or challenges during the pandemic.
Compensatory services are not necessarily provided as a “1:1” makeup for missed services. Rather, they can include extending the school day, providing summer services (“extended school year”), tutoring or therapies before or after school, and/or providing additional services during school hours. By law, parents must be included in these discussions and decisions, which should then be documented in the student’s IEP.
As discussed above, Congress authorized and encouraged schools to use their ESSER funds to pay for compensatory services for students with disabilities.
1. Show Me the Money!
School districts receiving ESSER funds are required to develop and publish a plan for using those funds to advance the purposes identified by Congress. The US Department of Education encouraged school districts to engage with the entire school community, including (in particular) parents of students with disabilities, in developing their plan.
Please consider contacting your local Board of Education, superintendent, and/or special education director to discuss your district’s plan for the ESSER funds and especially to learn how those funds will be used to help students most challenged by the pandemic, including students with disabilities.
The U.S. Department of Education identified professional development for school personnel from outside experts on “scientifically based academic and behavior interventions, including scientifically based literacy instruction” as an appropriate use of ESSER funds. Sounds like a good place to start and wise investment of resources!
2. Insist that Learning Recovery Activities Are Inclusive & Individualized
When developing and implementing plans to address the impact of the pandemic, schools are required to consider districtwide or schoolwide approaches for all students AND provide individualized supports and services for students with disabilities.
There are two important takeaways:
First, instructional loss programming and enrichment activities must be accessible and available to all students, including students with disabilities. (Here are 9 great suggestions for making that happen).
Second, simply including students with disabilities in districtwide and schoolwide interventions is not enough. In other words, general learning recovery and enrichment are "not a substitute for required special education services."
Students with disabilities may need additional supports and services to address their individual needs (including challenges that may have been created or aggravated by the pandemic). These decisions should be made as part of an evidence-based discussion, including the student’s parents, and should involve consideration of compensatory services (discussed above).
3. Be Proactive
If your student regressed (or did not make appropriate progress) during the pandemic, were compensatory services considered at your last IEP meeting?
If not, then you can exercise your right to call a program review meeting to have that conversation.
Are you concerned that your student might experience academic, health, emotional, or behavioral challenges as she transitions back to a more traditional school schedule and environment?
You should ask your school team for their plan to address those concerns; perhaps with a gentle reminder that ESSER funding should be available to offset expenses for additional supports your student might need to be successful.
Is your student with a disability being included in districtwide or schoolwide instructional loss programming and enrichment activities with his typical peers?
If not, you might remind your district of their legal obligation to provide reasonable accommodations to students with disabilities and the requirement that they be included in such activities “to the maximum extent appropriate.”