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.