Advocating for Special Education Services During COVID-19

We are monitoring the coronavirus (COVID-19) situation as it relates to law and litigation. Find more resources and articles on our COVID-19 portal. For the duration of the crisis, all coronavirus-related articles are outside the Section of Litigation paywall and available to all readers.

The COVID-19 pandemic has increased mental health and education needs and created new barriers to mental health treatment and appropriate school services. Extended school closures caused loss of specialized instruction and in school therapeutic supports for many students.  For students with disabilities who are low-income, English Language Learners, foster youth, and/ or homeless youth, lack of access to appropriate technology and internet compounded the disruptions to a free appropriate public education. For example, guardians who do not speak English or do not have experience with technology struggle to follow remote learning plans or are unable to communicate with the school district regarding challenges that their students face. Economic uncertainty caused by the public health crisis has led to loss of employment, homelessness, and an increase in household stress.

Nevertheless, all special education students remain entitled to a free appropriate public education:

. . . no matter what primary instructional delivery approach is chosen, SEAs, LEAs, and individualized education program (IEP) Teams remain responsible for ensuring that a free appropriate public education (FAPE) is provided to all children with disabilities. If State and local decisions require schools to limit or not provide in-person instruction due to health and safety concerns, SEAs, LEAs, and IEP Teams are not relieved of their obligation to provide FAPE to each child with a disability under IDEA.

"Question and Answer document in response to inquiries concerning implementation of the Individuals with Disabilities Education Act (IDEA) Part B provision of services in the current COVID-19 environment" USDOE September 28, 2020

Although special education evaluations and team meetings have been significantly impacted by extended school closures and remote learning, school districts remain legally required to produce timely assessments and hold team meetings within the timelines. Under 34 C.F.R. § 300.301(c)(1), the initial evaluation must be conducted within 60 days of receiving parental consent for the evaluation; if the state has established its own evaluation timeframe, the evaluations should be completed within that timeframe. If the parent fails to produce the child to be evaluated, an extension is permitted. Otherwise, school districts are urged to “investigate all appropriate assessment instruments and tools to determine if some can be administered or completed remotely during the pandemic . . .[and] also work with the developers of their current assessment instruments to determine if the instruments can be administered or completed remotely, without significantly impacting the validity and reliability of the results.” School districts are also urged to engage in team meetings by telephone or video if guardians and other IEP Team meeting participants agree, as 34 C.F.R. § 300.328 allows. When teams convene, they must determine a child’s IEP services will be provided whether by in-person or remote instruction. Alternate available instruction, such as online instruction, teleconference, direct instruction via telephone or videoconferencing, or consultative services to the parent (if feasible) must be considered by the team.

Lawyers must support families in accessing services and document regression that students experience when they are denied a free appropriate public education. When school systems provide remote educational programming, school officials must ensure that students with disabilities have access to the same programming as their nondisabled peers. Moreover,

If a child does not receive services during a closure, a child’s [individualized education program (IEP)] team (or appropriate personnel under Section 504) must make an individualized determination whether and to what extent compensatory services may be needed, consistent with applicable requirements, including to make up for any skills that may have been lost.

“Questions and Answers on Providing services to Children with Disabilities during the Coronavirus Disease Outbreak March 2020” USDOE, March 12, 2020.

To assist you in advocating for needed services, documenting any regression, and preparing information in order to seek compensatory services after schools re-open, we offer some information to help you get started.

• Send a letter to the director of special education and/or their legal counsel. Make a request in writing regarding the school district’s implementation of remote learning plans that are individualized to engage the student in meaningful and productive learning. Request the school district convene the IEP team by telephone or video conference to maintain the health and safety of team members and expedite the process. Request that the team review the student’s loss of skills and determine what compensatory services need to be offered or whether a change of placement is needed.
  • Sample letter to the attorney of the school district—drafted by Torie Argus.
• Assist families in developing evidence of a student’s regression. Inform families of the importance of documenting setbacks in writing in order to record the impact of lack of instruction on the student. Provide the family with an online form or printable log to track inability to complete assignments, loss of skills, and/or any new areas of concern. This information will be really helpful for the team to consider whether compensatory services are needed. It may be helpful to be specific and give examples of what kinds of information that families should be including in a log.
  • Sample online form and log—created by Lisa Morrow.
  • Sample form in Spanish—translated by Mara Shulman.
• Request the support of any community-based providers working with the child. Children with special needs often have some service providers in their lives who may or may not be associated with the school. The child’s therapist, pediatrician, social worker, prescriber, tutor, and so forth should record in their medical record or treatment notes any changes in the child’s performance during this time. Many providers may wish to attend a future team meeting or provide a letter citing any worsening of conditions or new issues that arose during the school closure, like trauma. Again, this information will be very helpful when considering the need for compensatory services.
  • Sample letter to community provider—drafted by Lisa Morrow.
• Anticipate gaps in treatment for your client. Communicate frequently with your client and mark any interruptions in treatment. During this unprecedented strain on our public health system, research if telemedicine is available in your state and assist your client in accessing telehealth services. Document any obstacles to prescription medication, therapeutic services, and/or medical interventions that typically support your client.
  • Sample check in questions when speaking to the family—drafted by Lisa Morrow.
• Advocate for students to be prioritized for in person learning and services. Find and review local school district re-opening plans. Check if any students are being prioritized for in person learning. If a school district is doing a "hybrid" learning model, with some days of the week in-person instruction and other days remote, figure out how specialized services such as speech/language, OT, will be delivered for your client’s child—will it be in person? If so, does it conflict with core curriculum classes? Encourage your client to keep a log of instruction provided, work assigned/completed, and special education services delivered on remote instruction days that occur in the hybrid schedule.
• Communicate with school regarding any missed ESY services. If a student was unable to receive special education ESY services, particularly those that require direct, in-person contact, school districts "should consider providing ESY services to the child during the normal school year, during school breaks or vacations where appropriate to the child’s needs and consistent with applicable standards." Document missed ESY services and send a letter to the school regarding these services and how they will be made up.

Start Your Litigation Membership Today!

Join the ABA's Section of Litigation and gain value and insight in your career, no matter your experience level. Signing up is easy and grants you member-only access to the latest news, information, and thinking on litigation strategy.

Marisol Garcia is the managing attorney/director of and Lisa Morrow is senior supervising attorney in the Mental Health Advocacy Program for Kids at Health Law Advocates.

^{Copyright © 2020, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).}