Is my student still entitled to services?
Yes. COVID-19 and distance learning do not give schools the right to stop the implementation of existing plans. If you have an IEP or 504 in place, schools still need to honor those services. The team may, however, need to get creative with how they provide those services. Under Federal law, state and local educational agencies are required to provide all children eligible for special education and related services under the IDEA with FAPE. Once school resumes, the schools must make every effort to provide special education and related services to the child in accordance with the child’s individualized education program (IEP) or, for students entitled to FAPE under Section 504, consistent with a plan developed to meet the requirements of Section 504. (For more information please read Operating schools during COVID-19: CDC’s Considerations: Students with disabilities or special healthcare needs.
Can IEP meetings resume?
A parent may request an IEP team meeting to discuss the potential need for special education and related services. If meeting in person is not an option due to school closures, IEP meetings can be held over video conferencing, such as Zoom, or the telephone. The team, with parent involvement, may determine the need to modify services due to distance learning, but changing the services temporarily to address the current needs does not mean parents have to keep the modifications once schools return to in-person sessions.
Parents and caregivers should prioritize their top three to five needs on their IEP during the pandemic. While you can ask for many things, try to focus on the needs that are most urgent in your current situation. All requests should be gathered and put in place during an IEP meeting, if they are not already currently written in an IEP.
There is no set precedence during a pandemic, and this will look different across states, counties and school districts. Please understand that schools, both public and private, must follow the guidelines set forth by the Centers for Disease Control and Prevention (CDC) and the Department of Health (DOH). These guidelines are in place to support the entire country.
We encourage open and honest dialogue with your school to express your concerns and needs of your student. The way services are delivered will look different then they have in the past. Please be patient, but vigilant in your communication and documentation.
Is it important to document correspondence with schools?
Yes. Having a “paper trail” is a great way to document your journey and often ensures the school district will honor the requests and timelines required by law. If you have a discussion with a teacher, principal, or administrator, send an email to summarize the conversation and copy other IEP team members so everyone is on the same page. Do your best to keep the emails factual, without emotion, and give examples when possible. The TS Alliance has a Book of Sample Letters, that can be customized to any child’s unique situation and neurologic condition.
What are compensatory services, and do they apply to the current situation?
Compensatory education is a remedy designed to make up deficits resulting from the denial of FAPE. Circumstances caused by the pandemic, that are beyond the control of schools, may make compensatory education required to remedy the loss of skills/regression as a result of extended school closures and disruptions to in-person instruction,
During the pandemic, schools must prioritize, above all else, the safety of students, staff, and communities. Consistent with this priority, schools must also ensure that—to the greatest extent possible—students with disabilities are provided the special education and related services identified on their IEP. Because FAPE must now be provided consistent with the need to protect health and safety, there may be disruptions, delays, and/or changes in how services are provided, resulting in a student losing skills.
School districts must ensure that individualized determinations are made as to whether and to what extent a student may require compensatory education services to remediate a regression in skills as a result of the inability to provide services during COVID-related disruptions.
This does not prevent the IEP team from recommending more intensive services for a student, even if the need may be related entirely or partially to disruptions of in-person instruction resulting from COVID-19.
Parents may disagree and dispute a school district’s decision about compensatory education offered. School districts should always offer Prior Written Notice to inform parents about determinations regarding compensatory education.
What does Individualized Instruction look like in Distance Learning Settings?
As a school district considers options for distance learning, the district should generally assess the extent to which its students with disabilities will be able to attain educational benefit under each option. Depending on a student’s needs and the distance learning options available, districts may also need to develop plans to provide additional services to some students with disabilities when onsite instruction and regular school operations resume.
Can my child still access the assistive technology they had at school?
Schools should be flexible in providing access to school-purchased assistive technology devices when necessary, consistent with law, to ensure children have access to devices they typically use at school. When this is not possible, alternate devices, tools or services may be appropriate.
Does my child have to wear a mask if they have difficulty keeping it on? Can all the classmates and or teachers be required wear a mask if my child is medically fragile?
Currently, the CDC recommends students and staff always wear a face covering. Face coverings should not be placed on children younger than two years old, anyone who has trouble breathing, or other medical exemption. (Practice wearing a mask at home before school starts. This CNF video, Teaching Children to Wear a Mask, may be helpful for students resistant to wearing a mask.
Can the teacher wear a shield instead of a mask so my child can see her face?
Clear masks or cloth masks with a clear plastic panel are an alternative type of mask for people who need to see a person’s mouth. The FDA has approved a transparent medical mask which may be used. Clear face coverings are not face shields. CDC does not recommend the use of face shields or goggles as a substitute for masks. Goggles or other eye protection may be used in addition to a mask. The CDC has more details on options when cloth masks are not effective.
Can my child still get school-provided transportation services?
If a child receives transportation services as part of their IEP, these services still need to be provided and additional safety precautions should be considered. For example, a limited number of children on the bus, consistent drivers, face masks required.
Can assessments be given during distance learning? Are there any that can’t be implemented while honoring social distance rules?
Schools are required to provide assessments when they are mandated by IDEA and if a request is made to gather information for FAPE. It is up to the IEP Team to determine if an assessment can’t be given in the traditional way due to social distancing guidelines and, if so, the team can explore an alternative way to give the needed assessment.
Many schools are now offering in person assessments by requiring both the student and teacher to wear a mask, with an acrylic separator that allows the student and teacher to be socially distanced.
If a school can’t give an assessment, how can parents demonstrate/document regression or new needs?
The Present Level of Performance section in the IEP should give parents a baseline to determine if their child has experienced regression. When a parent recognizes regression, it is important to call an IEP meeting and address their concerns. In the email, parents can include as many measurable examples as possible, especially as they relate to the goals in the IEP. For example, if a child’s reading has slowed, you don’t need to provide the words per minute read, but instead indicate a paragraph that took 5 minutes to read now takes 10. Or maybe the problem is the student is no longer able to describe what they read accurately.
Your job as a caregiver is not to give a formal assessment, but rather to share what you witness at home. This will provide documentation of your concerns and data that may support compensatory education if appropriate when this crisis is over.
If I determine my child needs to continue with distance learning for medical reasons, while other children return to school, am I forfeiting services?
No. Homebound or distance instruction can be provided when a child is unable to attend school due to a verified medical or emotional reason relating to the child. If the child is a student with a disability, the IEP team needs to design an educational program to provide a FAPE. Homebound or distance instruction provides students with some level of instructional services during a temporary period, so the child will not fall behind in class curriculum. The IEP teams may also consider and independent study. This recommendation from the Council of Parent Attorneys and Advocates provides more detailed information.
Does my child have to go to the office for medication given all the sick kids are in the office?
Exceptions must be made for medication/dietary needs as documented in IEP. Many health and safety plans are currently being developed by schools as well as state agencies and organizations such as the National Association of School Nurses (NASN). Types of modifications include having the nurse coming into the classroom to limit student’s travel through a building or having children the COVID-19 symptoms in a designated area away from other children. Learn more about the NASN resources here. This interview about medicine in schools may also be helpful.
If lunch recess or snacks are not included with the back to school plan and my child has a strict diet (i.e. keto, or the need to eat food with the medication), can an exception be made?
Exceptions must be made for medication/dietary needs per documented in IEP. Collaborate with. Your IEP team to revise the IEP as needed to meet the current situation. This interview about medicine in schools may also be helpful.
Can the school send a paraprofessional to our home?
You can make a request for a para to be sent home, but there is no guarantee the school will be able to accommodate the request. This may be due to a matter of safety or shortage of staff. Some schools have provided services outside of the home, such as in the front yard, but rules and guidelines will vary by school and even the teacher providing the service, as they may have unique health risks themselves.
If my child is immune compromised, what is the policy to notify parents of exposures/cases in the school? Can it be required even if the exposure is not in my child’s “group” or “class”?
Per health and safety plans, notification will come from local Department of Health or the CDC. These organizations will offer the school guidance on contact tracing. They will have to maintain privacy of the person affected to the best of their ability. Review your school policy, and if it does not meet your child’s needs, work with your IEP team to find an alternate solution.
My child didn’t get their extended school year (ESY) services over the summer. How can those lost services be made up?
If ESY was in your IEP, but wasn’t offered over the summer, districts and parents must work together to determine what each student needs upon returning to school. The student’s IEP team will need to meet and determine present levels of performance as a prerequisite to designing an appropriate program and placement.
If ESY was declined, you would not be eligible for the services to be made up at a later date.
My child was getting push-in services in the general ed classroom previously, but with online learning, can I request my child get direct services until there are in-person classes?
If a child is unable to effectively participate in the distance learning option offered to their general education classroom, schools must meet your child needs to receive FAPE. If distance learning is not doing so, alternate services need to be explored with the IEP team.
Are special education services considered essential services, and if so, does that mean my special needs student can return to school while the general education population is still in distance learning?
State law determines what is an “essential service.” The current federal law states if schools are providing something for regular education, schools must provide the same service for special education students. Work with your IEP team to determine if your child’s services are deemed essential, and if so, work to find the best approach to safely offer the services.
My child is showing signs of anxiety and depression due to COVID-19, if the school was not providing mental health services prior to the outbreak, are they responsible to do so now?
If not currently identified in the IEP, schools are not responsible to provide the service. Many schools are working on emotional support programs for the entire school population as there has been some negative emotional impact on nearly all children. If you believe your child’s mental health is at risk or is impacting their ability to access the curriculum and participate in calls, you can request a formal assessment to determine if your child qualifies for additional services.
Do IDEA Part C services need to be offered during distance learning and/or shelter in place orders?
If the office of the state agency providing services remains open, Part C services need to be offered. If Part C services cannot be provided in a particular location (child’s home), by a particular EIS provider, or to a particular child who is infected with COVID-19, then the lead agency must ensure the continuity of services in an alternate location, by using different EIS provider, or through alternate means, such as consultative services to the parent. Learn more here.
Do state agencies still need to provide early intervention services to infants and toddlers with disabilities?
If the office of the state lead agency of the Early Intervention Services (IES) program or provider is closed, then services would not need to be provided to infants and toddlers with disabilities and their families during that period of time. If the lead agency’s offices are open but the offices of the EIS program or provider in a specific geographical area are closed due to public health and safety concerns as a result of COVID-19 outbreak in that area, the EIS program or provider would not be required to provide services during the closure. Learn more here.
If my school district is only offering distance learning and unable to provide my child with the services needed, can I request to send them to another local or nonpublic school or to a private school that is open?
If a school acknowledges they aren’t providing FAPE, you can ask for an alternative placement. If they believe they are offering FAPE, you can file due process. All public and private entities have to follow CDC guidelines for safety, so it may be difficult to find an alternate school that can meet the needs of the child.
If my school district is not providing the services my child needs, is the school liable for private services that I give my child?
Unless a school admits they aren’t providing FAPE, they are not liable for private services. You can, however, ask the IEP team for an alternative placement and provide facts on why the school is not providing FAPE. If the school disagrees, you can file due process.
My child was receiving services through a nonpublic school prior to school closures. If my public school is close, but the nonpublic school is open, can my child continue to receive these services?
Because Nonpublic Schools and Agencies (NPS/A) provide critical programs and related services to students with disabilities, districts are encouraged to continue payment to NPS/As. Districts should work with NPS/As to take advantage of services that can be offered by NPS/As that elect to continue to provide services during school closures. In addition, districts and NPS/As should work collaboratively to ensure continuity of services for students currently served by NPS/As, pursuant to the IEP, including exploring options related to distance learning.
Learning from home.
More information
Information in the above questions-and-answers was taken from the Individuals with Disabilities Education Act (IDEA) and the federal Department of Education Office of Special Education Programs (OSEP) March 2020 Memorandum sent out to all state education agencies. COVID-19, or any situation like it, is something that is not addressed in IDEA. Unfortunately, as of the release of this article, there have been no additional publications providing more direct guidance on providing services to children with special needs. While there is no set precedence (rule established in a previous legal case that is either binding on or persuasive of a court) guiding school districts in what is legally binding, OSEP has taken the stand to be flexible with school systems in how they provide education for students with disabilities.
Per OSEP, “It is important to emphasize that federal disability law allows for flexibility in determining how to meet the individual needs of students with disabilities. The determination of how FAPE is to be provided may need to be different in this time of unprecedented national emergency. FAPE may be provided consistent with the need to protect the health and safety of students with disabilities and those individuals providing special education and related services to students. Where, due to the global pandemic and resulting closures of schools, there has been an inevitable delay in providing services – or even making decisions about how to provide services – IEP teams must make an individualized determination whether and to what extent compensatory services may be needed when schools resume normal operations.”
Because school districts are giving this flexibility to school systems, parents/caregivers must be prepared to be persistent through the IEP process to get services for their children to receive a Free Appropriate Public Education (FAPE). We strongly encourage the parents/caregivers to document your communication and keep detailed records. Please refer to the question answered previously in this article “Is it important to document correspondence with schools? for more information on how to make a “paper trail.”
We hope this information helps you better understand your rights and potential options, so you are more prepared to work with your school teams to support your child. You may also benefit from these CNF interviews about Therapy and Service Decisions During Closures or the Impact of Lost Therapy Services and What Parents Can Do.
Authors:
Lilian Ansari
After earning her Master’s in psychology and counseling, Lilian spent nearly 20 years working with various non-profits and public schools. She has been advocating for the needs of her own children with special health care needs, as well as others for the past 10 years. Lilian is a parent of two children with neurological conditions. She serves on the board of directors for the Regional Center of the East Bay in California. She is the Northern California Community Alliance Chair for The Tuberous Sclerosis Alliance as well as a special education parent mentor. Lilian is a graduate of the Council of Parent Advocate Attorneys and Parents Special Education Advocacy Training and a Community Alliance for Special Education consultant. Originally from Iran, she now lives with her family in Northern California.
Shelly Meitzler
After earning her degree in business management and working in the corporate world for over a decade, Shelly’s career trajectory changed when her family’s needs changed, and she needed flexibility in her work schedule to manage their care. Two of her three children are living with tuberous sclerosis complex (TSC). She has dedicated her time to advocating for their medical and educational needs. That personal passion and journey ignited her passion to help others and she is employed by the TS Alliance as the Community Programs Manager, East and serves as an Education Parent Mentor to support families navigating the education system.
Editor’s Note: If you have additional questions about getting your children the services they need, please share them with us by emailing [email protected]. We will do our best to keep this page up to date as the situation evolves.