The COVID-19 pandemic has taken an extreme toll on everyone. Some who have suffered the most are our children. Most students were forced to study remotely to avoid contact with anyone who might have the disease and to prevent the spread of the disease.
Remote learning is not the same as in-person learning, and if your child has an Individual Education Program (IEP), it may have been violated by forced remote instruction. In summer of 2020, Education Week published an article about the concerns special education administrators and schools had regarding the possibility of lawsuits from parents and advocates for children with disabilities. Those concerns may be well-founded; a handful of parents throughout the country have filed lawsuits against schools and school districts for violating their children’s IEPs.
Why would remote learning affect an IEP?
The Individuals with Disabilities Education Act (IDEA), per the Tennessee Department of Education, is a federal law that helps children with disabilities obtain the services they need. Generally, students with special needs are entitled to IEPs that help balance the student’s education needs with the ability of the school district to address those needs and other related issues, such as the disability itself. The shutdowns impacted the IEPs not just because the student-teacher experience was remote, but because other types of therapy (such as sessions with child psychologists) also had to be conducted remotely. Children who have specific testing requirements may have also been unable to take tests the way they are allowed to under the law; the same goes for turning in assignments, or handling “in-class” work.
Possible remedies and solutions for special needs students going forward
Education Week discussed some of the ways school districts could “better understand the legal protections entitled to students with disabilities” with several educators and advocates:
- Kevin Brady, associate professor at the University of Arkansas College of Education and Health Professionals and director of the University for Educational Administration Center for Leadership in Law and Education, anticipates that there will be a lot of focus on just getting schools up and running again – that the expense and cost of “special education legal literacy” may be less of a priority. He emphasizes that school principals and educators focus on giving the parents/legal guardians an “integral” role in new IEPs that can lead to less litigation.
- David Duff, a Columbia, S.C.-based attorney who represents school districts in special education disputes, emphasizes that it’s difficult to know what the “learning loss” due to the pandemic is, and what schools can do to make up for that loss. Duff thinks that the school districts that develop “plans for makeup services” should not use the term “compensatory education,” because it’s difficult to know if the learning loss due to COVID-19 is due to anything the school districts did wrong. This may become an issue in any litigation – could the school districts have done a better job educating special needs students during the pandemic, or were the learning losses unavoidable?
- John Eisenberg, executive director for the National Association of State Directors of Special Education, thinks special education services will need additional funding as schools return to in-person learning. If the funding for additional services, cleaning, special buses, and other needs doesn’t come through, then litigation may be more likely. Eisenberg says, “without federal funding, it could inflame the situation. It could pit the local school [districts] and state education departments against parents and advocates and that’s the last thing we need right now.”
- Jessica Toste, assistant professor with the Department of Special Education at the University of Texas, Austin, and Chair of the board of directors for Disability Rights Texas (a legal rights and advocacy group), thinks parents of children with special needs need to advocate for quality services for their children. School districts can’t let children with disabilities fall through the cracks while schools focus on the students without disabilities. Schools need to think through how the IEPs can be changed (most will need to be modified) to accommodate the special needs students.
Toste says that under the Individuals with Disabilities Education Act, the ability to file lawsuits and have due process hearings may still need to be used. She does expect that “courts could interpret them a lot differently under these extenuating circumstances.”
The rights of special needs students for 2021 and beyond
The federal government did not suspend the IDEA during the pandemic. School districts were and are obligated to provide a Free Appropriate Public Education (FAPE) to all students with disabilities. During the pandemic and as the pandemic recedes, schools should continue to modify their IEPs to ensure students with disabilities are getting the best education possible, under the circumstances.
According to Tufts University, “Back in the spring [of 2020] when schools closed due to COVID-19, the federal government declared that there would be no special education waivers, which meant everything within the Individuals with Disabilities Education Act – all timelines, services, and regulations – remained in force.” The problem has been, and continues to be, how to implement the IDEA in light of COVID. Many school districts, despite the law, didn’t provide the services they should have, and left most of the IEP plan enforcement up to the parents.
As schools reopen, the IEPs need to be reevaluated. By law, an IEP must be rewritten each year. Children must be evaluated every three years to determine their eligibility for the program. Students who are “new to the special education system must have an evaluation within 30 school days – and within the next 15 days, schools must meet with the parents.”
Students are also still entitled to the additional services required under law in their IEP. Per Mr. Eisenberg, “Families are entitled to compensatory services for special education services that were not provided in the spring or summer. For example, if an IEP stipulates that a child see a speech and language pathologist three times a week for 30 minutes, but the school did not schedule the appointments, then the family should receive compensatory services from the school district.” How these compensatory services are handled in light of COVID will need more consideration.
While there’s a lot of uncertainty about IDEA enforcement, IEP modifications, and school re-openings, parents with special needs children should do what’s in the best interest of their children. To learn your legal rights and how schools in Nashville are meeting (and not meeting) the challenges of a post-COVID Tennessee, contact the experienced special education lawyers at the Law Office of Perry A. Craft, PLLC by calling 615-953-3808 or filling out our contact form.
Perry A. Craft has dedicated his life to helping people in need. He has tried, settled, or resolved numerous civil and criminal cases in State and Federal courts, and has represented teachers and administrators before school boards, administrative judges, and the state Board of Education. Learn more about Attorney Craft.