The author, Juliet Hiznay, is a civil rights advocate and Virginia licensed attorney.
Will Covid-19 Permanently Undermine Special Education?
Special Education – The Lifeline
Special education is a lifeline for families across the country. Incredibly dedicated teachers, therapists and administrators dedicate their lives to educating children across the United States. They believe in access in education. The work is challenging and it is fulfilling. They help families understand the needs of their children. When it works the way intended, the outcomes are remarkable. Those who benefit from special education achieve more independence and success as adults.
How Do We Cope When Schools Are Closed?
What does special education mean, though, if educators can no longer be physically present? This really depends on the needs of each child. Non-verbal communication and physical accommodations are important to many children. Educators will also tell you that children behave differently at school than at home. They will share that they benefit from the structure.
Families are facing the need to create that structure. Most are doing so without the background. Some are doing so without the time, the energy, the social emotional resiliency or the skill. Some are doing so while coping with disability and other family obligations. Some are doing so while food insecure or unhoused. Some are doing so while sick.
What Are the Consequences of a Year of Profound Changes in Public Education?
These circumstances raise a question. Has the physical distancing required by the pandemic caused permanent damage to special education?
One possible outcome is that families will appreciate more the rights students gained since the 1980s. Another outcome is that staff workload being put off now will greatly strain the educational system as schools reopen. Advocates worry that the strain on schools will lead to special education rights being removed. This worry does not exist in a vacuum.
It is true that we need pragmatic solutions for schools. However, special education law is meant to be individualized. In the coming months as more and more schools offer in-person learning, it will become evident just how much long-term virtual learning has impacted students. Schools will need to make decisions on a case-by-case basis whether to provide compensatory education. There are practical limits to what can be provided, but the recent federal stimulus funds should help. The bigger resource issue might not be money, but rather trained educators.
When Does Being Flexible Mean Delivering Nothing?
On March 21, 2020, the US Department of Education provided the following guidance in a joint memo from the Office of Civil Rights and the Office of Special Education and Rehabilitative Services.
“To be clear: ensuring compliance with the Individuals with Disabilities Education Act (IDEA), Section 504 of the Rehabilitation Act (Section 504), and Title II of the Americans with Disabilities Act should not prevent any school from offering educational programs through distance instruction.”
In response to the CARES Act waiver language, the Council of Administrators of Special Education (CASE) and the National Association of State Directors of Special Education (NASDSE) advocated for broad waivers. In essence, they argued that none of major procedural protections, reporting requirements or funding restrictions under IDEA should be in effect during this crisis. This amounts to a waiver of their duties relating to transitions from preschool, state complaints, maintenance of effort, initial evaluations, reevaluations, develop, review and revision of IEPs, resolution process, timelines and convenience of hearings and reviews, and state monitoring and enforcement. Instead of IEP amendments, CASE and NASD propose the creation of “distance/continual learning plan(s).” Such plans would not be part of any IEP, and therefore would not be binding on the school district. However, this approach was not approved by the federal government. It is unclear how the new Secretary of Education will approach this issue.
Some states are strictly enforcing IDEA, even providing in-person instruction to children based upon need when it has not been deemed safe for the general education students to attend school in person. Others are offering “recovery services” for remediation based on skills lost by students during Covid-19. Such recovery services are not legally mandated in the same way that compensatory education services are required under federal law.
Some might say flexibility is necessary, but advocates are concerned about the severity of the impact of lost services, particularly for those students who require in-person support. One-size-fits-all solutions would undermine the public policy goals of IDEA to provide individualized support.
There are several possibilities that schools can explore short of total physical isolation. For example, home services can be provided even if schools are not fully reopened. In fact, these might become extremely important to protect the health and well-being of children who are medically fragile or have other high needs. Direct service should always be documented in IEPs. We do not know now if there will need to be repeated periods of adjustment to full participation in school, to varying degrees in different localities.
There is a mechanism for documenting changes to IEPs during interim periods. This is possible and should be attempted. Individualized education plan should never have been placed on hold. Instead, school districts have a duty to deliver services and accommodations in the interim to provide a free appropriate public education. Any changes to plans must be documented, and in Virginia any changes requires the parents written consent.
Published March 23, 2021
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