COVID-19 webinar explores legal, policy and instructional aspects of special education

Of all the challenges faced by local educational agencies during the COVID-19 crisis, questions around providing services and learning opportunities to students with disabilities have been at the top of the list. Absent waivers to requirements under the Individuals with Disabilities Education Act, schools have undertaken extraordinary efforts to continue these services, all while searching out further guidance and clarity — both legal and instructional.

The latest webinar in CSBA’s COVID-19 governance series, “Special Education in Extraordinary Times,” on May 13 offered a summary of the latest legal information and insights into how LEAs are adapting to the new realities of distance learning. “We’re in the business of educating kids, even in spite of the worldwide pandemic we are facing,” said Sarah Garcia, partner at Lozano Smith.

The panel of lawyers and special education administrators highlighted several common important messages for school leaders in their presentations:

  • Good-faith efforts to educate and serve students with disabilities, despite the limitations presented by physical distancing, will both more fully benefit the student and help shield the LEA from possible legal action or administrative disputes.
  • Creating a thorough compliance record detailing all services and resources provided to students with disabilities is critical for accountability and transparency during distance learning.
  • Individual Education Program services should be thoughtfully considered and reasonably calculated for a child to make progress on goals through distance learning. Even more dramatically than in a classroom setting, what works for one student may not work for another, panelists said. Parents or guardians are a key part of this process.
  • Outside of a few minor changes from the California Department of Education and the U.S. Department of Education, the bulk of guidance about special education and COVID-19 is not binding, but rather recommendations.
  • Now realizing the vast possibilities for instructional methods, LEAs must actively prepare for what special education services may look like next school year and beyond.

The importance of good-faith efforts

Kathryn Meola, CSBA’s Chief Legal Counsel and Director of the Education Legal Alliance, opened the webinar by overviewing the history of IDEA, Free and Appropriate Public Education (FAPE) and how LEAs are still required to meet these requirements during COVID-19. The U.S. Department of Education has said it will seek no waivers to IDEA and outlined core principles for which individualized education must occur for all students, including those with disabilities.

The big question for districts, however, is that if distance learning is the only option, should they be penalized if students do not meet the goals on their IEPs? “It’s hard to answer that question,” said Ron Wenkart, partner at Atkinson, Andelson, Loya, Ruud and Romo. “We’ll just have to wait and see what the courts do and what the hearing officers do.”

Considering the limitations placed on many special education services through a remote format, Wenkart and Meola said well-meaning efforts to meet IDEA and FAPE requirements will serve LEAs well. In instances when LEAs are found to have violated IDEA, the courts traditionally may order extra educational services designed to compensate for a past deficient program, also known as compensatory education. “If districts make a good-faith effort, the chances are the courts and hearing officers will take that into consideration,” Wenkart said.

Anjanette Pelletier, associate superintendent of the San Mateo County Special Educational Local Plan Area, said that is her experience that most California districts and schools have risen to the challenge during distance learning. “We do believe, for the most part, that there has not been a denial of FAPE for most children,” Pelletier said.

Documentation and instructional strategies

While all teachers are adjusting to remote instruction, it is important for board members to consider that special education teachers are working with students who are losing both their special services time and general classroom time, said Pelletier, whose SELPA includes 23 school districts and six charter schools.

In aligning which goals can be achieved with the realities at hand, Pelletier said distance learning plans for students with disabilities should reflect what is achievable given the circumstances. Instead of a one-size-fits-all approach, she advised educators to consider individual student services through the lens of “what can you be sure of providing?” To chart these goals, most LEAs are adding distance learning plan sections to students’ IEPs.

A good-faith effort to provide those services should also be grounded in a thorough effort to document all communication between parents, teachers and other LEA staff, as well as service logs tracking every text, call, email or video call with students and their families. “We want to make sure we are documenting all of the efforts we are making,” said Garcia, who is a parent of a child with special needs and also a former classroom teacher.

And, not knowing exactly what the summer or next school year hold, Pelletier and Garcia called on schools to be nimbler and more adaptable as they move forward in educating students with disabilities. The education system was caught completely off-guard by the impacts of the COVID-19 pandemic, leaving officials in a very reactive position.

“Now that we know this is a reality that we can get to, we need to be prepared in the event that it happens again,” Garcia said.