As many school districts ready themselves for the second semester of distance learning, parents of children with special needs are justifiably concerned about their children not getting the services they need.
So, what can you do to best prepare your student with disabilities for another semester of distance learning? The first question: Are you looking to make up for services not delivered last spring? Or are you planning for the semester ahead?
Remedies for Services Not Delivered
In order to qualify for an equitable remedy for services not delivered, you must demonstrate regression, the loss of learned skills. When does regression warrant an equitable remedy? Just as IEPs are individualized, the determination of when there is enough regression for an equitable remedy is done on a case by case basis. Important factors include:
1. Present levels of performance prior to school’s closing (move to distance learning) compared to the current present levels of performance.
2. Regression must be related to the deficits in the IEP. Did the student lose skills or regress on IEP goals?
3. Is the regression greater than delays exhibited by other students?
4. Are there services in the IEP that the school was unable to provide during the distance learning?
5. Degree and impact of regression
What can a parent do to facilitate getting their kiddos services to combat regression? Document, document, document!
To document your child’s regression, you will need to know what your child’s present level of performance (PLOP) was when schools pivoted to distance learning. If there was a recent IEP document, the PLOP should be there. If not, then you must document the students’ present levels of performance ASAP. Use the PLOP and the goals from your most recent IEP as a starting point. The documentation must be objective and measurable.
Continue to document the student’s PLOP on a consistent schedule, whether its weekly or monthly. Use your smartphone to video your student if possible. This will provide an objective and measurable record of regression to present to the IEP team or for use in litigation.
A quick word on equitable remedies. Compensatory Education (COMP ED) has often been discussed as a remedy for regression because of COVID. However, COMP ED is an equitable remedy created by case law and historically, it is not used unless the school district knew or should have known it was depriving a student of FAPE (Free appropriate public education).
The good news is, there is an easy workaround: Recovery Services. Recovery Services refer to the need of all students to recover from gaps in learning or loss of skills caused by distance learning. And unlike COMP ED, there is no requirement that the school district knew or should have known that a student was being deprived of FAPE.
Planning for the Semester Ahead
The first question you need to ask is whether the best version of distance learning would provide FAPE for your student. Please keep in mind that distance learning this fall should be much more comprehensive, structured, and organized. It will also include virtual special education services.
So, if your student could succeed with the best version of distance learning, then work with your district to make sure you are getting the virtual services you need for your student to succeed. This could be an informal conversation with your APEIS, an IEP team meeting or filing for Due Process if the distance learning being provided does not provide the services your student needs.
What if distance learning simply does not work for your student? What if your student needs in-person therapy, services, or instruction? What if your student needs an assessment? Though many school districts have been ordered not to provide in-person services, there are Non Public Agencies (NPAs) that will offer in-person services and assessments to students that need them. However, many school districts are unwilling to consider using NPAs for in-person services.
What can you do as a parent? First, establish your student’s PLOP and document your student’s regression, as described earlier. Beyond that, you do have several options:
(1) File for Due Process – If your district is unwilling to pay for available in-person services, they are depriving your student of FAPE. As of now, it seems as if the district will not settle this in mediation so be prepared to take this to a hearing. And it’s unclear how an Administrative Law Judge will decide on this.
(2) Provide for the NPA services yourself – Give the school district notice that you will be hiring an NPA yourself to provide for your child’s services and that you expect them to reimburse you. The school district will most likely refuse and you will need to file for due process. Please note you will only be reimbursed if you win the case.
(3) Health Insurance – You can try and get your health insurance to pay for the services. Some health insurers will pay for some services. But it is unlikely that any health insurer will pay for all the services needed.
One last suggestion: The way to change public education is to advocate, litigate and fight for child’s rights. Attend your school board meetings and advocate for your kids. Contact all your representatives from school board members to Governor. Challenge your school district by litigating for the services your students deserve. The virus has been a great disruptor of public education. Let’s take this opportunity to change it for the better.
If you are concerned that your child is not receiving the free appropriate public education they deserve during distance learning, The Law Office of Chris Eisenberg is here to help you. We can assist you with IEP team meetings, mediation, due process hearings and any other representation you need to protect the rights of your child.
Call 818 905 9591 or contact today.
As we head into our second semester of distance learning, many parents of children with disabilities are very concerned because their students will not receive the services that were agreed to in their IEP. This lack of services will lead to regression for many of these students. Is this refusal of services due to distance learning a denial of a free appropriate public education (FAPE) and what are the remedies for it?
There are two things that are equally true.
The first is that there is no doubt that there are thousands of students with disabilities who are not receiving the services that they were supposed to receive. At the same time, most school districts have been forced to suspend many services. I think, ordinarily, the suspension of these services is depriving these students of FAPE. However, if a school is not at fault, because it is impossible for the district to offer these services, can a school be said to depriving a student of FAPE?
Why is the question of fault important? Because Compensatory Education (Comp Ed) is often suggested as a remedy to possible regression by students that occurs because of distance learning. And COMP ED, at least until the pandemic, has always been predicated on the school district being at fault. Some background on Comp Ed would be helpful.
Comp Ed is an equitable remedy created by case law, not the IDEA. The Supreme Court first stated in 1985 that “equitable considerations are relevant in fashioning relief” in regard to the IDEA Act (Burlington School Committee v. Department of Education 471 U.S. 359 (1985)). A year later, the 8th circuit took SCOTUS up on that offer and issued a ruling that “the plaintiff is entitled to recover compensatory educational services if she prevails on her claim that the defendants denied her a free appropriate education.” (Miener v. State of Missouri 800 F.2nd 749 (8th Cir. 1986)). The Miener ruling continues to be cited today as the legal authority for the award of compensatory education.
Later circuit courts provided further explanation on the use of COMP ED stating that it was a “a deterrent against states unnecessarily prolonging litigation to decrease their potential liability” (Jefferson County v. Breen 853 F. 2nd 853 (11th Cir. 1988)) and a student who prevails should be able to obtain what they were entitled to the proceedings began.
Circuit Courts have also consistently ruled that if a school district knew or should have known that it is depriving a student of FAPE, it must correct the situation, or the student is entitled to COMP ED.
So we come back to our original question. If your student is being provided distance learning by the school district and it does not cover the services in the IEP, is this a denial of FAPE? Many school districts would argue that it is not a denial of FAPE because a distance learning during a pandemic is an “appropriate” form of education. And, based on existing case law, they would have a good case as it is impossible for a school district to offer in person services during the pandemic. So it’s hard to make the case that the school is at fault.
Please keep in mind that the law may be evolving as we speak. I certainly hope that it is. Distance learning and the pandemic will result in many due process hearings, compliance complaints and lawsuits as parents litigate for the special education services that their children did not receive during distance learning. And the law may change as cases filter up to district courts, circuit courts and even the Supreme Court. But it has not yet. So COMP ED, as of right now, may not be an appropriate remedy as it is predicated on the school district being at fault.
Here is the good news! COMP ED is not the only possible remedy. You can ask for RECOVERY SERVICES instead. The term RECOVERY SERVICES generally refers to the need of all students to recover from educational gaps in learning or loss of skills caused by distance learning. These educational gaps are often most profound in students with disabilities. So rather put the school district on the defensive by asking for COMP ED services which carries with it the implication that the school district is at fault, it may be safer to ask for RECOVERY SERVICES, which could amount the same exact services simply delivered under a different title.
And, if you do need to litigate, requesting RECOVERY SERVICES, which simply indicates that your student has an educational gap because of distance learning, you will probably be on firmer legal footing than to ask for COMP ED, which, based on precedent, takes the position that the school district is at fault. However, as I indicated above, the law is evolving as we speak, so check back here soon as we promise to cover all of the changes in the law!
Below is a link to an interesting blog recently posted by COPAA entitled “Let’s not talk “Comp Ed” generally for COVID-19 closure.” Mr. Feinstein makes the point that COMP ED is not an appropriate remedy as COMP ED assumes that the school district is at fault (that it knew or should have known that it was depriving s student of FAPE). And certainly that’s a correct reading of the case law that created COMP ED.
However, not all distance learning is created equal. And there may be circumstances when the school district is at fault (above and beyond the limitations placed on it by the pandemic) when COMP ED is a suitable equitable remedy.
In any case, I appreciate Mr. Feinstein’s perspective and think it’s worth sharing.
As we work our way through this crisis, the shutdown of the public school system looks like it will last months not days. As a result, most schools are switching to a distance learning model to teach students. Are the needs of our children with special needs being met? And if not, what can we do to protect their rights and assure them a free appropriate public education (FAPE)?
The response of states and school districts to the needs of the special education population vary widely. Some districts offer virtual IEP meetings while others have frozen students’ IEPs as is, with no new meetings until after schools physically reopen. Some districts provide appropriate accommodations to assist children with special needs while others do no more than send an email.
The first thing to remember is this. There is not a pandemic exemption to FAPE. If a school is offering distance learning to its students, then FAPE applies. The school must offer equal access to its students with disabilities (this may change depending on the recommendation of the Secretary of Education, more on this later).
The second thing to remember is that we are all suffering from this crisis. We need to understand that our fellow IEP team members are suffering too. We, as parents, need to be mindful of that and be flexible in our responses. Though it is certainly within our rights to request a virtual IEP meeting, there will be no in person therapy. Evaluations and assessments will also extremely difficult if not impossible. Our children deserve equal access to distance learning, but we must be flexible and creative in our solutions.
So what can we do?
The first thing is to take a deep breath. Because, as you know, taking care of a child with special needs is a marathon, not a sprint. Especially not a sprint through a toxic global pandemic. Everyone’s first priority should be to stay healthy.
OK? Breath taken?
The first step is to take stock of your child’s situation. What is the district offering to general education students? What is it offering to your child to give them equal access? Is it adequate? If not, what would make it adequate? Come up with a specific, actionable list and contact your IEP team members and/or the school district to make the district aware of your needs. Make sure a written record exists of all conversations. I can’t stress this enough.
Though the transition to distance learning is technically a change in placement that requires an IEP, be flexible. It will likely be difficult to schedule an IEP right away. If you can get the substantive changes you need through informal conversations with members of your IEP team, that’s your goal right now.
Even with the best accommodations, months of distance learning may cause regression. Document your child’s present level of performance now. This can be samples of their work or video, if you have access to it. Continue to track this throughout the shutdown, especially when the shutdown ends, to demonstrate any possible regression. Again, come up with specific actionable suggestions for what you want to address this regression. Two ways of addressing are Extended School Year (ESY) and Compensatory Education.
Something else to consider. None of the above will be possible if the Secretary of Education recommends waiving the Individuals with Disabilities Education Act (IDEA) as a result of the crisis. The Secretary has a month to decide if she wants to waive aspects of IDEA for up to nine weeks (45 school days) after school reopens. Even if she recommends it, it will still need congressional approval. So contact your senators, representatives and the secretary of education and let them know that waiving IDEA, even for a short period of time, is a very bad idea.
One last thing. If you want help developing a plan or talking to your IEP team, I am always available to advocate and/or vigorously represent the interests of your child in this difficult time.