Patrick G. Radel, Esq.
Back to School?
This is usually the time of year when stores roll out their big "back to school" sales. 2020, of course, has been different. Instead of shopping for pencils, protractors, and pants, parents are reviewing their district's "back to school" plan (or anxiously waiting for it) and wondering what's best for their student. This is especially true for parents of students with disabilities, many of whom are concerned about special medical, educational, and social-emotional needs.
What does the law say? What should parents and schools be doing in terms of re-opening plans and students with disabilities?
A short summary and some suggestions.
COVID Hasn't Changed the Law (So Far).
IDEA (the main federal special education law) guarantees students with disabilities a Free Appropriate Public Education ("FAPE"). It affords parents the right to "meaningful participation" in the development of the student's program and placement. It requires that each student receive an individualized education plan ("IEP") developed by a team of people knowledgeable about the student's strengths and needs.
Congress has not changed IDEA as a result of the COVID crisis and the Department of Education has said that students with disabilities are still entitled to their educational rights, including a FAPE, during the pandemic.
Students Staying Home for Medical Reasons are Entitled to Education.
IDEA does not address the question of what happens when a student with a disability is unable to attend school for an extended period because of a medical and/or psychological condition. However, nearly all schools offer homebound instruction to students who are absent for more than few days for medical reasons. If so, the school is required to provide homebound instruction for students with disabilities who meet the same criteria.
For now, many schools appear likely to offer a remote learning option due to the COVID crisis. At some point, however, the courts may be asked to decide whether schools are required to provide remote instruction for a student remaining home because of general COVID concerns, as opposed to a medical or psychological condition specific to the student.
Compensatory Education Needs to be Considered.
Prior to the pandemic, hearing officers and courts would routinely award "compensatory education" to students who had not received the free appropriate public education ("FAPE") they are entitled to under the law.
Compensatory education is intended to "make up for the educational services the child should have received in the first place." Doe v. East Lyme (2d Cir. 2020). Although compensatory education was often awarded when the school was at fault, a finding of fault isn't necessary or sufficient, as the key question is whether the student received a FAPE. If not, then compensatory education needs to be considered.
The Department of Education has said that compensatory education should be considered for students who regressed or did not make meaningful progress due to the pandemic.
Compensatory education does not mean a "minute-by-minute" makeup for missed services, Reid v. District of Columbia (D.C. Cir. 2005), but it does consider whether the student lost skills and/or did not make gains that we would have expected had the educational services been received. Compensatory services fill in the gaps and make up the missed progress.
Some Suggestions for Parents.
Review your school's re-opening plan carefully. There should be a section addressing services and options for students with disabilities. If not, contact the special education director or building principal.
Consult health care providers and experts familiar with your student and knowledgeable about his/her disability. Ask about medical risks associated with in-school attendance. The CDC says that while people with disabilities are not automatically at higher risk from COVID, they may have underlying conditions that increase the likelihood of infection or severe illness. Discuss social-emotional concerns associated with isolation and remote learning. Document recommendations offered by the health care professionals.
If the student is returning to in-person learning, be proactive in planning with your school. Discuss social-emotional supports to address the transition and the fact that the school experience will likely be very different from what it was before the pandemic. Discuss health and safety protocols and consider whether your student might need modifications to the protocols and/or support to follow them (e.g. mask wearing, hand washing, social distancing).
If the student will be accessing remote learning, advocate for the technology and training you need to make that work. There are many excellent resources to help support remote learning. There should also be a conversation about remote opportunities for peer interaction and social-emotional supports to address the effects of isolation.
Consider Compensatory Education. Hopefully, your school has already discussed (or has plans to discuss) compensatory education. Many, if not most, students with disabilities will have missed some services and experienced regression during the extended school closures. Those students are entitled to additional services to make up for the lost progress and/or lost skills.
Some Suggestions for Schools.
Communicate. Communicate. Communicate. A clearly communicated district-wide or school-wide plan and protocol is, of course, indispensable. The plan should address the particular needs of students with disabilities. However, there's no substitute for having a student-specific single point-of-contact - a person with the responsibility of maintaining contact with the family and who can act as a reliable resource to address concerns and answer questions.
Priority Please. Surely, all students have suffered as a result of the pandemic. However, the impact of extended school closures will likely be felt most by the most vulnerable. Students with disabilities who are unable to effectively access remote learning and/or who are experiencing social-emotional trauma as a result of isolation should be given priority in terms of in-person schooling opportunities, counseling services, and technology resources.
No "Cookie Cutters." Consider the unique circumstances of each student. Will this student need modifications to the health and safety protocols and/or support in following them? What can be done to ease the student's transition, including any difficulties we might expect because of how different school might look (and feel) right now? Review best practices for supporting students with complex social-emotional needs.
Ensure Access & Sustain Community. Consider the technology and training your remote learning students and their families need. There are many excellent resources specifically related to students with disabilities, including students whose behavior challenges interfere with remote learning. Also consider what can be done to build and sustain a school community that includes students who will continue remote learning.
Contingency Planning is Key. Although we hope school re-openings will be successful, there is a real possibility of renewed school closures. Contingency plans should be developed to address the student's individual needs when/if that happens.
Can We Be "Political" for a Minute?
Regardless of your political affiliation, if you're concerned about students with disabilities, then we have to be honest about how public policy impacts the ability of parents and schools to help these especially vulnerable children during this extraordinary crisis. Democrats and Republicans, including the Trump Administration, agree that the pandemic shouldn't cause students with disabilities to lose their right to a free appropriate public education. There should also be bipartisan recognition of the reality that local schools cannot meet the needs of all students, including and especially those most severely impacted by the crisis, without significant additional federal resources.
So, you might consider contacting Congress to urge them to protect students' rights and provide desperately needed resources to promote their safety, educational progress, and social-emotional well-being. They need it. They deserve it.