CSBA legal webinar explores challenges of serving students with disabilities in the new school year

When schools closed for in-person instruction in the spring to prevent the spread of COVID-19, students with disabilities were among those most negatively impacted by the loss of face-to-face interaction with teachers, specialists and aides.

To aid board members and local educational agencies, CSBA recently held a pair of webinars exploring the many legal impacts on governance and operations during the COVID-19 pandemic with top education law attorneys from CSBA‘s premier affiliate law firms.

Focus areas in the second webinar on July 29 included learning loss and compensatory education, child find during the pandemic, the Learning Continuity and Attendance Plan, liability and guidance on opening, and the impact of Senate Bill 98 — the budget education trailer bill — on special education.

A key message from each presentation: Document everything.

“One thing that districts are seeing is that not only is this unprecedented, but it keeps changing. This is part two of the webinar series, and things have changed since part one,” said William Tunick, of Dannis Woliver Kelley, noting the best way in which districts can protect themselves later is with thorough documentation. “What may be reasonable based on the information we have today may look a lot different in six months. Being able to go back and have documentation explaining ‘what were the grounds on which this decision was made’ would be a helpful thing to have if there are questions six months from now.”

What SB 98 requirements for distance learning mean for students with disabilities

SB 98 raises as many questions as it answers, said Jan Tomsky, of Fagen Friedman & Fulfrost, LLP. Still, there are things that local educational agencies can start doing now that, when well documented, can help defend or counter claims seeking compensatory services in the future.

More importantly, beginning to implement remediation opportunities for all students now will benefit every child, including those with special needs, English learners and other students most vulnerable to significant learning loss.

However districts choose to proceed in the coming year, Tomsky reiterated the need to document everything done to provide students with Individual Education Program-based services, including efforts to provide services. Administrators should also prepare to assess students upon their return to campus and to analyze student’s progress or regression at that point.

And when it comes to adapting services offered in light of the pandemic, being proactive and clear with parents about how the LEA will provide services will be beneficial.

“We’ve always had the obligation to monitor the progress of students with IEPs, but it has never been more important than now that we monitor progress on goals, that we document that, and that we share that with parents,” Tomsky said. “Because in truth, as in all things related to special education, parental communication is always going to be the key.”

Marcy Gutierrez of Lozano Smith, LLP, answered a number of looming questions posed both by webinar attendees and current clients around the requirements for distance learning spelled out under SB 98.

Specifically, distance learning requirements now include:

  • Daily live interaction with certificated employees and peers as part of regular instruction when feasible
  • Daily tracking and weekly monitoring to verify participation and progress
  • Access to connectivity and devices
  • Content at a level substantially equivalent to in-person instruction
  • Academic and other supports to students not performing at grade level
  • Necessary accommodations for special education students and integrated instruction for English learners

While LEAs were caught off guard by COVID-19 and the extended school closures last year, they must now plan to provide to students the supports they need as spelled out in their IEPs.

“Now under state law, we have a specific requirement which says that distance learning must include special education and related services, as well as any kinds of accommodations that we need to put in place to ensure that a student can actually access their IEP while in a distance learning format,” Gutierrez said. “The big discussion this year is the daily live interaction with certificated employees. Last school year, we had lots of staff members that were doing an excellent job in engaging in daily and weekly live interaction with our students with special needs. It is now a mandatory component of our law.”

Early in the webinar, one attendee asked a question Gutierrez said has become increasingly common: does daily live interaction requires daily live interaction with a teacher?

“The answer is no,” she said. “A speech and language pathologist may meet this requirement, or a school psychologist — it’s any staff member that has a certificate or a credential that’s recognized by the California Commission on Teacher Credentialing. They could meet that daily interaction requirement.”

Part one of the legal webinar series focused on issues related to distance learning, layoffs and liability, as well as clarity on language in SB 98. Read a summary | View presentation slides | Watch the webinar.