December 2020/January 2021
The MLO Minute: Authors: Caitlin McAndrews, Esq. and Alexander Corbin, Esq., McAndrews Law Offices; and Stefanie Ramirez and Marissa Band, Disabilities Law Program of Community Legal Aid Society, Inc. (CLASI). An original version of the article was published in Delaware’s News Journal. —
All students with disabilities are entitled to a free, appropriate public education (FAPE) by state and federal laws, including the Individuals with Disabilities Education Act (IDEA). The current COVID-19 pandemic has not suspended or delayed that crucial right. Whether the public school delivers instruction virtually, in-person, or in a hybrid model, it must meet the educational needs of its students with disabilities.
Unfortunately, some special education services and supports cannot be delivered virtually or even part time with the same effectiveness as when students learn full time, in person. And some students do not learn as effectively in remote and hybrid models.
Physical and Occupational Therapists cannot use the same methods to develop a child’s gross or fine motor development through a computer or distanced as they would up-close and in-person. Online instruction and in-person, masked interactions both fall short when instructing students with social skills deficits in how to read facial expressions.
Teachers struggle to provide hands-on learning opportunities through the computer for their more kinesthetic learners – those who learn best by moving and hands-on activities.
Students who benefit from routine, especially those with executive dysfunction or Autism, do not adjust well to hybrid schedules. But these and students with many other, varied needs are still entitled to an appropriate educational program, tailored to their individual needs and designed to facilitate meaningful progress.
Recovery Services. It is no surprise that many students have lost skills or concepts. The United States Department of Education (US DOE), the Pennsylvania Department of Education (PDE), and the Delaware Department of Education (DDOE) have all released guidance on supporting students with disabilities during COVID-19 (see, e.g., a parent-friendly fact sheet summarizing the Delaware guidance statement). These guidance statements speak of services offered for students with Individualized Education Programs (IEPs) as a result of missed or disrupted education during pandemic-related school closures. Different states use different terms for these services, such as “Recovery Services” in Delaware and “COVID-19 Compensatory Services” in Pennsylvania. A student’s need for these services is a decision made by the IEP Team, including the parent or guardian and is separate from any right to compensatory education owed due to a prior denial of FAPE for any reason.
A determination of Recovery Services or COVID-19 Compensatory Services should be based on a review of the student’s data and any new assessments, to identify where a student has missed instruction or lost skills. These guidance statements make clear that these COVID-19 compensatory/recovery services are totally distinct from compensatory education for past inappropriate programming, which is designed to place students where they would have been if the school had previously provided FAPE, and which also must be individualized to the student. Students denied FAPE during the pandemic may be entitled to both compensatory education and COVID-19 Compensatory/Recovery Services for times prior to, and during, the pandemic.
When schools change IEPs, including offering Recovery or Compensatory Services, they should issue a Prior Written Notice to the parent or guardian. Review this document carefully. If you want to accept these Services but think your child may also be entitled to additional compensatory education for any denial of FAPE at any time, add a note by your signature that you consent to your child receiving the services, but that you are not agreeing they are sufficient, or that you want to continue this conversation when schools reopen completely. Never sign a Prior Written Notice that waives your child’s right to FAPE.
Procedural Due Process Safeguards, which can be found on your state or school’s website, list options you have if you disagree with your child’s school about services for your student (such as mediation or complaints). If you believe that your student was denied FAPE, you may wish to consult an attorney about your options.
More Tips. Most parents and guardians do not have the same level of expertise as the school professionals who work with students with disabilities. Consider requesting “parent counseling and training” as a related service to receive additional support during remote or hybrid learning. This service can include training on responding to behavior consistent with in-school behavior management, how to use assistive technology, or information or resources on child development.
Many parents and guardians cannot constantly supervise their student’s online instruction, especially if they have other kids or work. Teachers instructing remotely have less access to students than in the school building. Request increased communication with the teacher to bridge this gap. Tailor the communication to the child’s needs. Short emails can keep everyone up-to-date on a student’s assignments or remote learning struggles; a heads-up of the week’s learning objectives can facilitate family pre-teaching.
Some students may benefit from hard copies of materials, physical manipulatives, sensory supplies, and alternate response methods (e.g. oral or handwritten as opposed to typed). Having these learning tools in addition to the virtual lessons can help improve your child’s understanding of the schoolwork.
Know the difference between synchronous (live) and asynchronous (prerecorded) online learning and consider which works best for your child. The answer may differ depending on the subject or time of day. Ask the school to support the format that will most likely enable your student to make progress.
Some schools have shifted from remote instruction to a hybrid model, and back again. If your child’s school changes instructional models, ask questions like, “Will the same teacher instruct students virtually and in-person at the same time?” “Will in-person learning include related services?” and “Will my child’s schedule or teacher change from in-person to remote?”
This is a challenging time for families and schools, but creative collaborations can ensure that the needs of vulnerable children are still met.
Caitlin McAndrews, Esq. and Alexander Corbin, Esq. McAndrews Law Offices
910 Foulk Road, Suite 200, Wilmington, DE 19803-3159; P: 302.380.4975
Stefanie Ramirez and Marissa Band, Disabilities Law Program of Community Legal Aid Society, Inc.
100 W. 10th Street, Suite 801, Wilmington DE 19801; 302.575-0660