Lisa McCauley Parles and Denise Rekem Special Education attorneys
FAPE IN THE TIME OF CORONA
During these unsettling times, it is overwhelming when we consider the negative consequences the emergency closure of school buildings has had on students. Many of us are alarmed that many students have likely fallen behind or have simply failed to make any progress during this period. In addition to suffering a regression of skills, many students have had an increase in maladaptive behaviors. There is a great need to return students to the classroom. However, in light of the resources and planning necessary to do this in a safe manner there is much uncertainty surrounding the reopening of schools in the fall. All of these concerns may create a sense of frustration or even hopelessness as to how we can address students’ potential lack of progress and regression due to the global pandemic and the resulting closures.
Recent federal and New Jersey state guidance reaffirm that school districts remain obligated to provide students with disabilities a free appropriate public education (“FAPE”) and to comply with all its IDEA and 504 obligations as long as they are providing education to the general education population. The pandemic did not change that obligation other than the provision that districts are to provide the necessary and appropriate services, interventions, and supports to students with disabilities to the “greatest extent possible” under these extraordinary circumstances. The guidelines acknowledge that even with alternative means, including remote instruction and services, many students may not be able to access their education, make meaningful progress, and in many cases, may regress. Therefore, the guidance provides that the districts will provide compensatory education to students to make up for this time period and address those losses.
What Does This Mean?
Basically, students with disabilities have the right to continue to receive to the greatest extent possible the appropriate services, interventions and supports they need in order for them to make meaningful progress and to access their education– even during this time of the pandemic and even with school buildings closed or partially open with hybrid virtual plans as may happen in the fall. That may entail working with the Child Study Team (“CST”) or IEP Team and coming up with a creative temporary or contingency plan to provide the instruction and services to your child via remote services or some other manner. In some cases, direct one to one instruction may be necessary in order for the student to make progress. However, that plan does not become your child’s IEP or 504 plan. This is a temporary plan, specific to providing to the “greatest extent possible” under the circumstances the services, instruction and support already specified in the IEP or 504 plan with all the goals and objectives an IEP may include.
In addition, applying the same standard, school districts remain obligated to identify, evaluate and prepare IEPs for students under the same procedural timeline requirements to the “great extent possible”. If this does not happen or if a student already has an IEP or 504 plan and is unable to (1) access learning via remote technology or other efforts of instructional activities, or (2) some services don’t effectively translate and students fail to make meaningful progress, then they would be entitled to compensatory education when school buildings reopen and students return. According to the state guidance, compensatory education will be determined on an individualized basis by the IEP team in consideration of whether and to what extent compensatory services may be needed.
What is Compensatory Education?
Compensatory education is part of the appropriate relief courts can grant to children denied FAPE. The purpose of compensatory education is to place students with disabilities in the same position they would have occupied but for the failure to provide them a FAPE by providing the educational services they should have received in the first instance. Moreover, and relevant to the pandemic, there does not need to be evidence of bad faith on the part of the school district in order for a student to be entitled to compensatory education.
Compensatory education may be awarded when an IEP is not fully or appropriately implemented, and when there is failure to comply with child find obligations to identify, evaluate and prepare an IEP for a student with a disability. Courts have adopted and school districts have since applied different ways to determine the amount of compensatory education warranted. In order to put the child in the same place they would have been but for these failures, the Third Circuit Court of Appeals whose jurisdiction includes New Jersey has applied a quantitative approach or a period equal to the period of deprivation. The court has yet to have the opportunity to determine whether it will apply this approach to potential cases resulting from the pandemic closures.
It is important to note that compensatory education is in addition to the special education and related services the student would otherwise receive going forward. There are a number of ways compensatory education is provided, including but not limited to, services/instruction before or after school or during the summer; reimbursement to parents for private providers; or sometimes, placement in a private day or residential school.
Finally, it is not too late if you have a student who has already received a diploma or over twenty-one. They may still be eligible for compensatory education for the failure to provide FAPE before the completion of the school year in which the student received the diploma or turned twenty-one.
The Challenges of School Closures, Partial Reopenings and Remote Learning
School districts across the state provided different methods of remote access to learning and continue to offer diverse reopening plans. Some districts solely provided paper packets with limited access to a teacher. Other districts provided prerecorded lectures and services, some provided live synchronous lessons. Even when students had the technology and internet access, there were a plethora of inherent challenges to remote learning. For many students, including those with ADHD or executive functioning skills deficits, it was a struggle managing on their own with no set schedule, searching for assignments, completing and turning them in and accessing videos or live instruction. Some students were not provided the modifications/accommodations set forth in their IEPs or 504 plans. The efficacy of 1:1 paraprofessionals provided virtually as well as related services was called into question, even if provided with live instruction through distance learning. As a result, understandably, many students became discouraged and easily disengaged from remote instruction. The required parental/guardian involvement and expertise for this to work was and continues to be overbearing and unrealistic.
What Can Parents or Guardians of Special Needs Students Do?
This is already a time of great stress on family life and it doesn’t help to be told you have more obligations and tasks to complete when juggling all the extra stresses COVID-19 has brought. However, there are just a few things along the way which, if you are able to do, will go a long way in helping your child get the FAPE they are entitled to and the compensatory education that may be necessary if they have not received a FAPE.
1. Review your child’s IEP or 504 plan and document which services, interventions, modifications and supports are not being provided, and whether if provided, it complies with how often and for what duration as specified in the IEP or 504 plan. Tracking the delivery of instruction and services will support whether and how much compensatory education is warranted later.
2. Contact the Case Manager and provide her/him with a written accounting of missed services/instruction/modifications/
supports in writing (email is the easiest way)
3. Request in writing that the school immediately provide the special education, services and supports in your child’s IEP or 504 plan. The CST may want to hold a meeting which may be held remotely to discuss and agree on specific strategies and alternatives to deliver those services and supports in the time of school closure or partial reopening. Those strategies and alternatives should become a contingency or temporary plan to deliver what is already provided in the IEP or 504 during COVID remote learning. Keep in mind that the District cannot request a waiver of rights to FAPE or compensatory education before providing educational services.
4. Keep track of your student’s progress or lack of progress with data, including work samples and/or videos if more appropriate for capturing their present levels of academic and functional performance. Track where your child was at the beginning of the school closure to the present. Data collection should include change in behaviors as well.
The collection and sharing of this information will support your child’s need for compensatory education once school reopens. It also helps with collaborating with the CST for more effective ways to deliver services, interventions and supports during school closure or partial reopening due to the pandemic.
The Return to School
Many parents/guardians are not comfortable sending their students to in-person learning when schools open in the fall. The Governor of New Jersey has provided guidance allowing parents/guardians to opt for all remote learning for their students without waiving any rights. Choosing remote learning rather than in person does not forfeit the students’ rights to IEP/504 services and supports and compensatory education.
Remember that the school district cannot request parents/guardians to waive their students’ rights as a condition to providing educational services. Nor is the district allowed to change the students’ IEP or 504 plans to decrease services due to remote instruction. Students are entitled to the same services and supports provided in their plans for them to make meaningful progress. If the District tries to change an IEP that a parent or guardian is not in agreement with, parents/guardians have 15 days to file for due process to preserve the prior IEP in what is called “stay put.”
It is important to consider that school districts are also struggling to figure out how to address the complex and extensive challenges that have resulted from the closure of school buildings and the precarious reopening prospects for the fall. However, that does not absolve them of their obligation to provide FAPE to the greatest extent possible during this challenging time as reaffirmed by the federal and state guidance. Collaboration with CST/IEP teams is always encouraged, and never so important as now when combined efforts may facilitate creative ways to provide the services in your student’s IEP or 504 plan to the greatest extent possible. In addition, tracking the services your student receives or does not receive as well as documenting your student’s progress will aid in getting the appropriate compensatory education your student may need to address their lack of progress or regression.
Each individual case is different and may warrant different methods of advocacy and strategies to receiving the necessary compensatory education your child needs to regain lost skills, make meaningful progress and receive the educational benefit they are entitled to under the law. If you would like to receive more information and guidance regarding your specific case, please call Parles Rekem LLC.