The MLO Minute, By Dennis McAndrews, Esq., Founder, Michael Connolly, Esq., Supervising Partner of Special Education, and Kimberly Caputo, Esq.
School districts everywhere are struggling to decide how their schools might open for the upcoming school year. The options being considered run the full gamut from 100% virtual instruction to 100% in-person instruction, with many variations in between, such as 40% in-person instruction with the remainder of teaching being via virtual means. Most schools in Pennsylvania and Delaware do not anticipate opening on time for full in-person instruction, and many have already announced limited in-person instruction when schools finally open. Unfortunately, lost in most of these discussions is the process by which to provide children with disabilities their entitlement to a Free Appropriate Public Education (FAPE) during times of total or partial school closure. The “default button” for most school districts appears to involve providing special education students with the same percentages of in-person instruction as regular education students. Such a policy often operates unnecessarily to deprive children with disabilities of their entitlement to FAPE contrary to federal and state law. Along these lines, it is particularly noteworthy that studies have already shown that students with disabilities have been among the most negatively impacted by the failure to provide in-person instruction since mid-March.
The situation for the upcoming school year is very different from mid-March, 2020, when the current pandemic landed upon the scene and required statewide lockdowns and the total closing of schools. At that time, it was understandable that in-person instruction would cease for all students in light of the rapid spread of the coronavirus and the scientists’ limited understanding of the means of transmission and protections through masking, physical distancing, and aggressive forms of hygiene. Despite the pandemic, both the United States Department of Education and the various states Departments of Education made clear that the right to FAPE has not been waived or diminished by the closing of schools, and these departments have recognized that children with disabilities will often be entitled to compensatory services to address a loss of skills or failure to make the meaningful educational progress guaranteed by federal law. This right to FAPE for students with disabilities continues into the upcoming school year, and where schools are either closed to the general student population or have a reduced census every day, children with disabilities can and should be able to receive the in-person instruction set forth in their IEPs for the reasons set forth below, recognizing, of course, that the hallmark of special education is individualized programming to meet the specific needs of each child.
First, with schools much more sparsely populated (or not populated at all), and self-contained special education classes being small in number of students (typically no more than 10 children), maintaining physical distancing for these students from other students and faculty can be readily accomplished in most existing special education classrooms, but where necessary other areas can be utilized such as empty larger classrooms, gymnasiums, cafeterias, and auditoriums where substantial and adequate physical distancing can readily be provided. Some school districts may also choose to provide outdoor instruction, where studies show transmission rates to be 20 times less than in enclosed spaces, existing pavilions, gazebos, or in rental tents with fans/heaters as necessary for comfort. A variety of protections can be implemented to dramatically reduce a risk of transmission, such as masking wherever possible (recognizing that a limited number of children with disabilities may not be able to consistently wear a mask, and other protections such as clear face shields or Plexiglas dividers are available alternatives), opening windows, using exhaust fans, eating lunch within the classroom, and staggering times of arrival, departure, and movements outside of class. Music instruction involving singing could be discontinued, physical education would be conducted outside whenever possible, and some special classes such as Art could be brought into the main classroom with appropriate physical distancing.
Where students with disabilities are included in regular education classes, the students could again be served (if parents should desire) in the main school building, where the teacher would provide the virtual instruction from her classroom with the (typically) three or four children with IEPs sitting physically distant from one another and the teacher. After the teacher provides the virtual instruction to the regular education class, with the included special education students listening contemporaneously, the teacher and/or co-teacher and/or instructional assistant could meet with each special education child at an appropriate physical distance to re-instruct, answer questions, and otherwise engage the special-education students as necessary. For parents who choose to continue virtual instruction for their students with IEPs, it will be critical to ramp up parent training to allow parents to be effective partners in assisting their children to access virtual instruction and to monitor their children’s progress, with as much oversight as possible within the family structure. For these children, it will often be necessary for an IEP to be revised to provide for virtual reinstruction and tutoring of these children with disabilities to prevent the type of loss of skills and failure to make meaningful progress which so many children with disabilities experienced in the spring.
Our Special Education Department is prepared to assist families in advocating for appropriate programming for students in settings and circumstances that allow them to make meaningful educational progress as envisioned by federal and state law. We provide free consultations and the majority of our cases are handled without retainer or payment of hourly fees by our clients. We look forward to assisting your family.