Last Updated on March 17, 2021 by Michelle Ball
By Michelle Ball, California Education Attorney for Students since 1995
As the months of Coronavirus destruction of life as we know it roll on, it is clear that not only have lives been destroyed, but also that the educational lives of our children have been crushed. This is especially true for special needs kids, who have been shoved home and largely forgotten about as far as the level of support they may need to access and advance in their education. With the fall approaching, and some schools reopening for physical classes, or a hybrid model of in-class instruction and online school, it is time to think about how to recover from the near-destruction of special education services this past time period.
Although no one has the answers on Coronavirus, what will happen, what may happen, and what parents may be entitled to in the future after a denial of their legally-mandated special education services, there are a few things that parents may want to do:
1) Review their child’s IEP (Individualized Education Program) and/or 504 Plan document and list out all the services the child should have been receiving and the dates those services stopped.
For example, if a student was to be receiving 30 minutes per week of speech and language services, this should be noted down. Did they also lose out on a specialized classroom, or behavior instruction? Put it all down. Note when the service should have continued through (e.g. May 31, 2020) and when it actually stopped (e.g. March 15, 2020).
2) List out all the services that were missed. On the speech and language example, if a student had no speech and language from March 15 through May 31, 2020, the student should have received approximately 11 sessions of speech and language, for a total of 5.5 hours of service.
3) Figure out what services were actually provided, albeit via distance learning.
4) List out all the goals that the student was working on for all areas and see if there are any updates on their progress on the goals from service providers or the school. Some schools provide zero quarterly updates, and some provide periodic updates listing the status of the goals. Parents need to know what the goals in place are and where the student is on accomplishing their goals, if possible. It may be tough to really determine where a student is on a goal, however, if they have not been in school. Parents can only do their best.
5) Gather all the work the student did, as well as all email or other communication between the family and school or providers about the child during the Coronavirus exclusion, and get them into date order so it can be clearly seen what was represented would be provided, or not provided, and what was actually provided.
6) Pull up the child’s report card and lists of assignments for each class, showing points awarded and points possible during the last semester and see what the student was assigned, what they actually turned in and the points they received. Do the points they received evidence the student was at the level they are supposed to be? Often lists of points tell a story about the student, their weak and strong areas, and their trouble spots.
These actions should give parents a good understanding of what was supposed to be provided, what was actually provided, and where the student may be as far as learning and goals.
There is a question on special education and what parents and students will be entitled to when they return to school or if schools will just get out of their obligations due to Coronavirus. It is uncertain, but needs to be approached by parents if they want to have a chance to recoup. Things will go faster for parents if schools will physically reopen versus remaining on virtual learning, simply due to the mechanics of services being delivered.
Parents should attempt to determine what may be needed to bring the student up to where they would have been had school been in session. Services to accomplish this goal should then be sought. This is hard to quantify, but parents may want to bring the literal hours missed to the school first (e.g. they missed 5.5 hours of speech) as a starting point. However, school districts don’t necessarily have to provide hour for hour make-up time.
Ultimately, what may be required if the schools don’t get out of this obligation due to a health emergency, are services to bring the student up to where they would have been had this debacle not occurred. This is hard to evaluate and it is possible outside experts may have to be brought in to determine this (e.g. a licensed speech and language therapist). Services provided to make up loss may be in a smaller or larger amount than what should have been provided had schools remained open. Services are really based on what the student needs to be brought whole again. These services are sometimes called “compensatory” services, as they compensate a family for lost education.
In its “Fact Sheet: Addressing the Risk of COVID-19 in Schools While Protecting the Civil Rights of Students” released March 16, 2020, the United States Department of Education wrote in discussing the special ed issues from Coronavirus:
The Department understands that there may be exceptional circumstances that could affect how a particular service is provided. If a student does not receive services after an extended period of time, the student’s IEP Team, or appropriate personnel under Section 504, must make an individualized determination whether and to what extent compensatory services are needed consistent with the respective applicable requirements, including to make up for any skills that may have been lost. [emphasis added]
This appears to confirm an affirmative obligation of schools to act to provide compensatory services to students who lost skills during this time. Offering compensatory services has started happening outside California, for example in Louisiana where the state is taking a proactive approach. I am not sure that California schools will take on this issue or offer compensatory services without being asked by parents first.
How hard the districts fight or if they are able to wiggle out of compensatory services is yet to be seen.
Regardless, parents need to start looking at this and take action if they want to help their children regain any skills lost during the Coronavirus school shutdown.
Education Attorney for Students
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Please see my disclaimer. This is legal information, not legal advice and no attorney-client relationship is formed by this posting. This blog may not be reproduced without permission from the author and proper attribution of authorship. This blog may not reflect the current state of the law.