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Special ed, COVID and legal challenges...what should you know?


Districts continue to wrangle with the impact of COVID – and making determinations on how school year 20-21 should go forward. Nothing is off the table – but what is most certainly still on the table is delivering FAPE to students with disabilities regardless of what method of instruction is taking place in your local educational agency (LEA). This quick blog post will bring you up to date on Office of Special Education Programs (OSEP) guidance regarding the delivery of special education services as well as current legal cases that involve COVID and the delivery of special education and 504 plans to students across the country. To understand this more completely, one needs to understand the legal language of IDEA, in particular, the terms procedural and substantive violations.


 

Procedural violations are those violations that impact child find – a district’s obligation to identify, evaluate and determine eligibility of any student. Procedural violations also include timelines associated with evaluation, including annual reviews and the IEP development process. This includes protection of parental participation in the IEP process, i.e. changes to the IEP being made without parental consent and the IEP team have the required composition of members.


Substantive violations are those violations aligned with IEP content, its implementation and the conference of “educational benefit and a reasonably calculated IEP. Also included is LRE- that the student was not educated in his/her least restrictive environment.

What elements of IDEA have particular bearing on instruction and COVID? (1) Child find, which includes evaluation and eligibility determination, (2) FAPE and LRE, and (3) the need for compensatory services. (Zirkel, 2020). Under FAPE, the two most common FAPE issues related to COVID are (1) procedural violations and (2) failure to implement the IEP. For procedural FAPE, which typically starts with a due process hearing, this question must be answered: did the LEA violate one or more procedural requirements and if so, did it result in a substantive loss (see above) to the student or interference with parental participation? For Failure to Implement (FTI), the legal approach requires proof of a material or more than minor shortfall (in implementation) and is generally handled by a Written State Complaint.


 

In March, the United states Department of Education issued guidance to public schools (https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/qa-covid-19-03-12-2020.pdf) regarding FAPE- that during distance learning, schools must ensure to the greatest extent possible a student with a disability can be provided special education and related services as indicated by the student’s IEP. When school resumed, each LEA would make a determination whether and to what extent compensatory services would be need to make up for any regression or student losses on an individual basis.


The most recent OSEP guidance document published in September 2020 (https://sites.ed.gov/idea/files/qa-provision-of-services-idea-part-b-09-28-2020.pdf) essentially says the same as the March 2020 document – that regardless of the type of instruction, State Education Agencies (SEAs)/LEAs remain responsible for FAPE for student with disabilities. Some flexibility is afforded to SEAs but timelines for initial evaluations and annual reviews are encouraged to remain in place per federal regulations and alternate means of conducting meetings should be explored.


 

There have been various lawsuits to date, but too limited for generalization at this point. For due process hearings, the primary issues have been “stay-put” – making no placement or service changes to the IEP and FTI; for written state complaints the issues are aligned with IDEA procedural regulations. A survey of SEA Dispute Resolutions conducted by Zirkel and Jones, 2020, indicated the predominant issue for both due process hearings and written state complaints have been failure to implement the IEP. Overall, Mr. Zirkel and Ms. Jones speculate that lawsuits aligned with the pandemic may not be filed until after students return to school due to the full impact of the shutdown has not yet been determined on the student's learning and fears and fatigueof COVID may have decreased legal actions up to this time as the level of activity is less than anticipated based on the authors.


So, what does all of this mean for school-based therapists? Regardless of instruction delivery type, you must provide the services as indicated on the IEP. It will require creativity on your part but professional organizations have documents available to support your work as well as social media platforms and Pinterest. Should you feel that you are unable to provide ethical services due to the type of instruction methodology, you must meet with your administrators to discuss. Not providing services would be a FIT and procedural violation. During this period, IEP amendments are allowable and a team decision; it is possible that goals/objectives on the IEP are no longer needed, necessary or appropriate, but good clinical reasoning and transparency are paramount to making any decisions regarding the student’s FAPE, LRE and your services. There is no one answer when it comes to compensatory services; the IEP is at the heart of the conversation and the need for compensatory services will be reviewed individually for each student as needed. Good baseline data is key to determine if there has been regression; continue to collect data and review with your team regularly.


We continue to live in unprecedented times and are” flying the airplane while we build it”.That being said, we, as school-based therapists, have learned a lot regarding the delivery of virtual services. Greater family connections and looking into the home lives of our students have been a silver lining. Educational relevance extends to activities and routines in the home. To avoid legal challenges, continue to support the tenets of IDEA and team process including the delivery of the IEP or other plan your state and or district have authorized for students with disabilities.


Reference:

https://perryzirkel.files.wordpress.com/2020/10/cadre-briefing-paper.pdf

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