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 exacerbates existing inequities in our public health, judicial, and educational systems. During this global public health crisis, vulnerable children and families face many barriers to appropriate services. With national extended school closures due to COVID-19, children who receive special education accommodations may fail to receive not only their education but also other therapeutic services. Lawyers must advocate for the most vulnerable members of our society and balance the scales. 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.

In order 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 during and/or subsequent to the extended school closures. If it would be helpful to have an IEP meeting during the school closure, request that the team meeting occur by telephone or video conference to maintain the health and safety of team members and expedite the process. If the meeting will happen subsequent to school closures, 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 to have once school re-opens and the team needs 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.

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).}