The federal Individuals with Disabilities Education Act outlines specific requirements for identifying and educating children with disabilities, but the coronavirus crisis has sparked fierce debate over how adaptable the law is to a world where online education may be the only option.
U.S. Secretary of Education Betsy DeVos has instructed school districts that federal law should not be used as a cover to prevent them from offering online learning to students with disabilities. However, experts say, that guidance and fact sheets from the federal government have offered little direction on the topic beyond encouraging parents, educators, and administrators to collaborate creatively—and many school districts have struggled to respond.
For some educators, the biggest challenge has been determining how to handle students' Individualized Education Program, the carefully constructed plans designed to meet the educational needs of children with learning and physical disabilities in an online learning environment. More than 7 million children in U.S. schools have IEPs, leaving no room for a one-size-fits-all resolution.
Education Week interviewed three experts—a special education attorney, an attorney who represents school districts in special education disputes, and a professor who studied special education law for decades—to find out what advice they have on handling IEPs during the global pandemic.
During the discussions, three common themes emerged. Schools should: provide services to students as soon as possible; worry more about making progress than following the letter of the law; and understand that much of federal law wasn't written with online education in mind.
Here's a look at what the experts had to say. Their statements have been edited for length and clarity:
Focus on Families - Selene Almazan, legal director, Council of Parent Attorneys and Advocates (COPAA), and an attorney in private practice who represents families and children in special education matters in Maryland.
Almazan compiled a fact sheet to help families of children with disabilities understand what rights they have during the extended school closures. "It is an unprecedented time. We are encouraging families to try to work with schools and school systems to figure out what's going to be best for students through distance learning and how they're going to access it.
One of the benefits of not having the IEP meeting [as scheduled] would be that it's not an opportunity for a school district to take services away from students during this time.
The key is that school systems need to offer something to all students. We want cooperation and we know what schools needs to offer equitable access if they're offering distance learning to everybody else. They have to include students with disabilities in that mix as well.
We are encouraging families to document where their child is as far as skill level, either through video or through data sheets, that kind of stuff so that when the pandemic closures are over they can see whether or not there's been any regression in skills for students, whether that's academics or behaviorally or anything related to occupational therapy, physical therapy, speech and language.
Families just want to know what they're going to receive and when they're going to receive it and what it's going to look like. We want cooperation [but parents] should not be agreeing to this being the status quo for carrying over into next year to the 2020-21 school year. So, they should not agree to that unless schools are still closed. But they should agree to this probably until the end of their academic year."
'IDEA Wasn't Written for This'
Julie Weatherly, attorney and founder of Resolutions in Special Education (RISE).
Weatherly represents school districts in Alabama, Florida, and Georgia as general counsel and in special education disputes and she said special education directors across the country are "pretty frenetic" and focused on following the letter of the law of the Individuals with Disabilities Education Act.
"So, I've tried to calm them, to say, 'Let's don't worry about that. Collaborate with parents, reach informal agreements, document those agreements, and then move on to 'What can I do right now? What can we do right now for your child?' What I keep telling everybody is IDEA wasn't written for this. It didn't contemplate this.
The anxiety is probably going to die down a little bit once services get started. But everybody's so worried about the legal procedural requirements that relate to IEP team meetings and evaluation timelines, just all of those.
For the most part, the IEP itself is not going to be able to be implemented as written, but rather than amend those documents or anything like that, I think most parents would be amenable to agreeing that, 'Hey, let's keep that intact for now. But what are we going to do in the meantime?'
Think about preparing an outline of distance learning services and get parent input because basically what's happened is parents have now turned into the teachers. Pump your energy and your concern into getting, as best you can, some services to help the families and to help the children [so they don't] experience significant regression in their skills. Be thoughtful about what are the critical priority skills that we would want to focus on so the students don't get so far behind that the future will be harder.
We may be coloring outside the lines and we'll ask for forgiveness later. These procedural requirements were all written in a world that wasn't in a national, or worldwide, safety and health emergency."
Zirkel, who writes a blog that explores the intersection of special education and law, says a fear of being sued has some districts focusing on the wrong things. A lot of the attorneys and administrators and teachers, because of the emotions and the frustrations and the procedural prescriptions of the IDEA, are focused on, 'Oh, how am I going to get parent consent?' or 'Did I document everything exactly?' or 'Did I get all my evaluations done on time?'
Don't spend a lot of time on all these procedural issues like how quickly you update the [IEP] goals, what notices do you have to send to parents for their consent. We're in an unprecedented situation with limited resources, do the best you can on the substantive issue, which is: 'How do I get as many services to kids, whether it's occupational therapy or something else; how can I get the most services to kids to be as effective as I can?'
The ultimate priority is on making good-faith, reasonable efforts to deliver services to eligible children under the IDEA. And whatever else you can do procedurally is a bonus. It's gravy.
Parents should put their priority on the same thing, which is, how do I collaborate with this district in good faith to try to get the most services to my kid. Good faith, collaboration, creativity; it's the same advice I'm giving to districts. And if you give them both the same advice, then hopefully [students get the services they need].
Because of this unprecedented situation where we know that we cannot do everything that we would have done otherwise, the main priority should be on