The "Back-To-School Edition" (Whatever "Back-To-School" Means)

August 27, 2020

We’re finally there.  For months everyone’s been asking, “What’s next year going to look like?”  Well, it’s next year.  And school districts are still struggling to decide what to do.  Much is still unknown: Will students go back full-time?  Part-time in a “hybrid” model?  Or will your school go fully virtual?  But one thing not up for discussion is whether school districts are required to provide students with disabilities a Free Appropriate Public Education (FAPE).  This has never been in question and both the U.S. Department of Education (U.S. DOE) and the New York State Education Department have reiterated this obligation. There’s a lot to be considered, but this post will focus on compensating children for the services they missed last year as well as intensifying the level of supports for this year.  As we analyze this, you’ll come to realize there are actually two issues at play here.

 

While some children with individualized education programs (IEPs) may have progressed last year, remote learning made providing services listed on students’ IEPs very difficult if not impossible.  Many students will have made no progress due to this and some may have even regressed.  When schools fail to provide students with disabilities a FAPE, they are obligated to compensate them by providing “compensatory education,” or Comp Ed, to place the student in the same position she would have been in had a FAPE been provided.  It is an individual determination unique to each student.  The U.S. DOE has been very clear that students may be entitled to Comp Ed due to COVID-19 closures.  

 

Increasingly, parents have been telling me that their school districts are arguing that they are not required to provide Comp Ed as a result of COVID-19 because it wasn’t their fault.  Some are even trying to convince parents to sign documents stating that their children are not entitled to these services.  Make no mistake.  It does not matter whether the school district is at fault.  Indeed, when I argue cases in front of Impartial Hearing Officers, they usually don’t care whether a violation was intentional or not.  All that matters is whether there was a violation and how it affected the student. 

 

Once students go back to school, the students’ IEP teams must meet to determine present levels of performance.  Without that, you can't set goals.  If the student has regressed from where she was when schools closed due to the pandemic, or if the gap with her peers has widened, her new IEP is required to provide more intensive services than those provided on her prior IEP.  This may require more sessions of Speech & Language or maybe individual sessions instead of group sessions.   

 

But in addition to these more intensive services, it should be beyond dispute that regarding students who were unable to access their services remotely, such as with occupational therapy and physical therapy, districts should provide them with Comp Ed.  Not every student will need it.  And it may not be necessary for schools to make up for the exact number of related service sessions that were missed.  It may require fewer (or more) sessions to put the student in the place he would have been had a FAPE been provided.

 

Hopefully you took my advice from my previous post and have something to show the present levels of performance at the time that schools closed last year.  You can then compare that to where your child is now.  Start looking for old reports, homework, tests, etc. that will help you prove there was regression.  Also, depending upon how long it takes for your child to recoup her losses, she may be entitled to Extended School Year (ESY) services.

 

Finally, you may want to ask your CSE to reevaluate your child.  The CSE is required to reevaluate students at least once every three years OR if the CSE determines that the educational or related services needs of the child warrant a reevaluationA six-month break from in-person classes is a pretty good justification for a new evaluation to determine the student’s present levels of performance.  You will then be able to compare it to prior assessments.

 

If you have any questions about this or other issues, feel free to contact me.

 

 

 

 

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