The MLO Minute: By Michael Connolly, Esq., Supervising Partner of Special Education, and Dennis McAndrews, Esq., Founder
With so many schools moving to virtual instruction, either full-time or part-time, students with IEPs cannot afford to be left behind any longer where such remote instruction does not provide meaningful benefit. While some school districts and charter schools are recognizing that in-person instruction must continue for IEP students in the now-empty or near-empty school buildings, others are proposing a return to virtual instruction which was used in the spring, often with negligible benefit or even regression for students with IEPs. Parents should understand the legal and practical issues in order to effectively advocate for their children in this very extraordinary time.
First, read your child’s IEP. Know its terms, and be sure that it is clear with respect to the type/location of the services. In most cases it will call for in-person instruction in a physical school, unless another IEP was developed during the pandemic which called for virtual instruction even beyond the end of the 2019 – 2020 school year. Under federal special-education law, the pendant placement, which is the placement that must continue in the event of a dispute, is the last agreed-upon program and placement. Therefore, a careful reading of the most recent IEP is essential, especially if that document was revised during the closure of schools in the spring. Hopefully, any IEP created after school closures and which called for virtual instruction, recognized that virtual instruction was an interim program applicable only to the end of the 2019 – 2020 school year.
Second, understand your rights to in-person instruction. Our firm’s website has many articles with respect to the rights of parents of children with disabilities, and other Internet resources such as Wrightslaw are also available.
Third, state your expectation to the school district (or charter school) to receive in-person instruction. Express this expectation in writing, and as soon as possible. Don’t wait, as time is of the essence, and the future is now.
Fourth, follow up with the school district (or charter school). Don’t wait for more than two days for an answer. If that time frame should lapse without a response, ask again in writing.
Fifth, if a request for in-person instruction is denied, insist upon a meeting with the IEP team. Whatever is the fastest way to meet should be accepted, and if the meeting needs to be conducted virtually to happen quickly, so be it. Advocate at that meeting for in-person instruction and be prepared to explain how/why your child suffered during the spring program and would again be denied an appropriate program without in-person instruction.
Finally, if the answer to your request for in-person instruction is “no“ and you are convinced your child will not receive appropriate instruction and meaningful benefit, you are not required to accept it, and due process hearings are being held virtually and an expedited hearing can be requested.
We are here to help, and our initial consultation is at no charge. Most cases are handled thereafter without fees paid by the family. These are extraordinary times, and effective advocacy has never been more essential. Our children’s futures are at stake.