By Amy E. Halpert and Marion M. Walsh, Esq., Littman Krooks LLP
We are living through unprecedented times. Schools have closed – a jolt to our systems. Students, educators and parents alike are trying to chart their course in our newfound world of online or remote learning. A host of new concerns and considerations in the wake of the coronavirus (COVID-19) confront both parents and educators.
The United States Department of Education, Office for Civil Rights (OCR) and Office of Special Education and Rehabilitative Services (OSERS), has issued, on March 21, 2020, a new Supplemental Fact Sheet on the provision of remote or distance learning and 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. Here are the basics:
Schools Must Not Decline to Provide Distance Instruction due to Perceived Barriers. Some educators have been reluctant to provide any remote instruction because they believe that federal disability law presents insurmountable barriers to remote education. OCR noted that this is simply not true. Schools must not opt to decline to provide distance instruction, at the expense of students, due to fears of not being able to provide accessible services for students with disabilities.
Necessitated Flexibility: While our current learning environment is challenged, OCR and OSER acknowledge the uniqueness of situation. OCR and OSER recognize that these circumstances affect how educational and related services and supports are rendered. That said, at all times, school districts must provide a free and appropriate public education (FAPE) that is consistent and reflective of the mandate to protect the health and safety of students with disabilities and those who provide education, specialized instruction and related services to these students.
What does that mean? It means that school districts must offer flexibility and ingenuity where possible. School districts must understand that providing FAPE may include, as appropriate, special education and related services provided through distance instruction provided virtually, online or telephonically. While determination of how educators will provide FAPE may be different in times of unprecedented crisis, FAPE cannot be null, and void. Where, due to the pandemic and closure of schools, there has been a delay in providing services – or even in making decisions about how to provide services – IEP teams (as noted in the March 12, 2020 OCR guidance must determine whether and to what extent compensatory services may be needed when schools resume normal operations.
Parents should expect educators to be creative, thoughtful and innovative. Many providers will not deliver services in the ways typically provided: hands-on therapy, occupational therapy or tactile sign language educational services may be unfeasible or unsafe. However, there are many disability-related modifications and services that may be effectively provided online including, but not limited to, extensions of time for assignments, videos with accurate captioning or embedded sign language interpreting, accessible reading materials and many speech or language services through video conferencing. Know that federal disability law allows for flexibility in determining how to meet the individual needs of students with disabilities, and encourage your educators and service providers to explore options with you.
Specific Methodologies are Not Mandated: While the emphasis during this time of crisis is on making online learning accessible to all students with disabilities, it does not mandate specific methodologies. Where technology itself obstructs access or where educational materials are not available in an accessible format, educators may still meet their legal obligations by providing children with disabilities equally effective alternate access to the curriculum or services provided to other students. For example, for a student who is blind and receiving a document from school, for example, a teacher can read the document to that student over the phone, or provide that student with an audio recording of a reading of the document aloud.
Creative Collaboration: During this time of crisis, creative collaboration between home and school – among parents, educators and administrators – is a powerful tool to meet the needs of students with disabilities. There are a variety of modalities such as distance instruction, tele-therapy, tele-intervention, meetings held on digital platforms, online options for data tracking and documentation. This is a confusing time, as parents are neither innovators nor education specialists. OSERS’ technical assistance centers are available to address your questions regarding the IDEA and best practices and alternative models for providing special education and related services, including through distance instruction.
Steps to Take Now to Ensure that Your Child Receives Appropriate Special Education, Supports and Services through Remote Learning
We know that remote learning is evolving day-by-day. There will be frustrations, challenges and hopefully, celebratory moments. If your child receives special education, services, or supports that now are delivered differently given the coronavirus pandemic, we suggest that you or your child take the following steps:
- Document/ Maintain Records: Keep a log of the hours of services received, and those not received. Make a note of the technologies, or modalities of accessing mandated supports and service, that are working and not working. Comprehensive records, organized in a clearly labeled file, are critical to ensure that you, or your child, receive a FAPE and to help establish the need for compensatory services once school resumes. Record online tools, or video-conferencing, with permission.
- Collaborate: Share observations with your teachers, service providers and administrators about the technologies, or other modalities of accessing mandated supports and services, that are working and not working. Do this routinely. Collaborate with individual educators, service providers or together with your CSE team, regarding alternative, innovative means of accessing the same supports and services.
- Contact OSERS for Technical Assistance: OSERS is available to address questions regarding alternate models for providing special education and related services, including through distance instruction. For questions pertaining to Part C of IDEA, states should contact the Early Childhood Assistance Center (ECTA) at ectacenter.org. For Part B of IDEA, states should contact the National Center for Systemic Improvement (NCSI) at ncsi.wested.org.
- Contact a Special Education Attorney: If you believe that a school is violating, your or your child’s federal civil rights law, it is wise to consult with a special education attorney who specializes in education law. Due process hearings are still proceeding remotely. We at Littman Krooks are open remotely and functioning throughout the outbreak—please reach out to any of us.
Please remember that ensuring compliance with IDEA, Section 504 and Title II should not prevent any school from offering educational programs through distance instruction. While it may be different in form, and require flexibility in execution, school districts must still provide a FAPE consistent with the need to protect the health and safety of students with disabilities and those providing education, specialized instruction and related services. At Littman Krooks, we understand that you may have questions about what constitutes specialized instruction during this unique time of distance learning, and whether you or your child is receiving FAPE as we navigate this new normal. Please contact us with any questions.