Parents (and lawyers) say distance learning failed too many special education students. As fall approaches, families wonder if their children will lose another school year
Linda Jacobson | July 30, 2020
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Georgianna Kelman’s phone doesn’t stop ringing nowadays. A special education attorney in Los Angeles, Kelman currently represents 60 families in southern California with complaints that their children didn’t receive services they were entitled to when schools closed in the spring.
“I can only imagine the bottleneck of litigation that is coming,” Kelman said. “I have clients to this day who have not heard from their teachers or their service providers.”
Because of the abrupt switch to remote learning when COVID-19 swept the country, districts nationwide have struggled to follow through with the services students are required by law to receive. It was made even harder by the fact that individualized education programs, or IEPs, that determine services for each special education student were never meant to be delivered virtually. These services might range from extra tutoring or speech therapy to extensive, one-on-one assistance for students with severe and complex health needs.
In Los Angeles, Jabril Scott, who is entering kindergarten this fall, is supposed to receive speech, occupational and physical therapy. But “for the first month [of school closures], we didn’t hear anything from any therapist at all,” said his mother Noel Scott.
When a therapist eventually contacted the family, they sent links to handouts for at-home activities. “It was just really silly,” Scott said.
Survey results released in May showed that almost 40 percent of parents whose children typically receive individual support in school did not get those services during school closures. Those with IEPs were also twice as likely to be doing little to no remote learning, and were just as likely to say that distance learning was going poorly.
Before schools closed, Jabril, who has Down syndrome, was also supposed to receive a device that helps him communicate. But when Noel Scott asked about it, she was told the office where the device was kept was locked. With schools in Los Angeles remaining closed for the beginning of the year, she’s not very hopeful remote services will improve.
“Especially if we’re going to be doing online distance learning, there has to be a lot of engagement for him to participate in that,” she said.
Special education students “struggled the most,” Mississippi State Superintendent Carey Wright said recently in a call with reporters. She added that her department has “heard from parents who did not feel that their children received what they should.”
Special education families across the country have stories like the Scotts’ this year. But whether districts provided services for students with special needs during school closures also varied tremendously and depended on a range of factors, including areements negotiated with unions, if districts already had one-to-one device programs, and teachers’ own family circumstances.
Some districts and regional education agencies that provide special education services say they are already being sued, and they expect litigation costs to further strain budgets when many are already facing cuts. Their reports come as the Senate is considering another pandemic relief bill that leading Republicans have said should include liability protections.
But John Eisenberg, executive director of the National Association of State Directors of Special Education, said across the board, states have not yet seen a flood of lawsuits. While some districts might be receiving more complaints based on how responsive schools were to families during the school closures, the majority of complaints “get resolved with a phone call,” he said.
Even so, at least two cases have received attention so far. And with a growing number of districts announcing they will remain closed for the start of the school year, the issues prompting complaints could continue into the coming year.
In New York City, a disability rights attorney has signed 200 parents from 10 states onto a case seeking to reopen schools so students can receive in-person services. With a radio advertising campaign, he’s seeking more families to join. And in Hawaii, a lawsuit aims to make it easier for districts to make up for the special education services students didn’t receive during the closures.
The reopening debate is spurring additional litigation — both in states that are aggressively reopening schools and those that are not. In Florida, education groups have sued over Republican Gov. Ron DeSantis’s order to reopen schools, leaving many special education families conflicted.
Parents “know that their children need specially designed instruction delivered in the classroom,” said Ann Siegel, the director of advocacy, education and outreach for Disability Rights Florida. But in other cases, she said, virtual instruction was more individualized and positive.
But in California, where Democratic Gov. Gavin Newsom has issued restrictions stating which schools can reopen, a conservative group filed a lawsuit last week, arguing that students with disabilities are among those hurt the most by distance learning.
A small survey of special education parents in the Los Angeles Unified School District showed that less than half of the respondents said their children received services during the three months that schools were closed in the spring. Others said the therapy provided wasn’t effective.
Fearing ‘legal challenges’
AASA, The School Superintendents Association, lobbied hard for the federal government to lift the requirements of the Individuals with Disabilities Education Act during this crisis, and they continue to look for such a provision in the next relief package, as well as “protection against related litigation.”
Although the Coronavirus, Aid, Relie, and Economic Security Act passed in March allowed for the waiver of major elements of the special education law, U.S. Secretary of Education Betsy DeVos opted against lenience. She urged districts to demonstrate “ingenuity, innovation, and grit” in serving students with special needs through distance learning or other methods. She also hasn’t granted a request from the Council for Exceptional Children for flexibility over IEP timelines.
Some districts acted on their own, however, asking parents to waive their rights to services for their children, but such moves have been declared to be legally out of bounds. The New Jersey Department of Education, for example, issued a notice saying such waivers violate state and federal laws.
In a survey this month, AASA, the National School Boards Association and the Association for Educational Service Agencies said 9 percent of respondents in those service agencies have received due process complaints related to the pandemic — essentially demanding what families are entitled to under the law. In addition, 30 percent of school districts and 38 percent of the regional agencies said they were expecting complaints.
Anonymous comments included, “I fear that the cost of litigation could potentially bankrupt our district,” and “We are a very small independent district, and a single due process hearing could, in reality, close down the district.”
The survey report notes that a single due process complaint can cost as much as $50,000, even if the parties mediate an agreement. About one-third of the special education-related complaints districts said they had received focus on insufficient services and 22 percent focus on compensatory services, which aim to help the students make the same amount of progress they would have if the services hadn’t been lost. Fifteen percent of the complaints focus on IEP meetings.
The report blames the Trump administration, saying that “policy support has been inadequate” and that while DeVos offered flexibility in how services were provided, “the ambiguity of federal or state policies could lead to legal challenges for school practitioners.”
Senate Majority Leader Mitch McConnell, a Republican from Kentucky, has spoken repeatedly about providing liability protection in the next federal relief package. On Monday, he and Republican Sen. John Cornyn of Texas introduced the “Safe to Work Act,” which aims to discourage “insubstantial lawsuits” against a variety of institutions, including school districts. But Sasha Pudelski, assistant director of policy and advocacy for AASA, said the bill wouldn’t prevent complaints or litigation related to special education.
‘Good faith attempts’
Eisenberg said AASA and the other organizations are trying to “sell a narrative” and that there’s no indication that there’s an increase in litigation compared to a typical year. Districts see thousands of requests for mediation and due process complaints every year. A report last fall from the U.S. Government Accountability Office showed that requests for mediation — considered a less adversarial route than lawsuits — have increased over the past decade, while due process complaints have declined.
Wendy Tucker, senior director of policy for the National Center for Special Education in Charter Schools, added that if schools made “good faith attempts” to provide services, remained in touch with parents during the shutdown and worked out compromises, they are less likely to see complaints. Most parents, she said, weren’t expecting perfection.
Linda Litzinger, a public policy specialist with Texas Parent to Parent, a statewide advocacy organization, agreed. She said parents have complained the most about a lack of communication from districts regarding how and when services would be delivered.
“[Parents] gave the schools a lot of leeway and that worked for a while,” she said. But when weeks passed and parents still hadn’t heard from their children’s special education teachers or classroom aides, “the frustration mounted.”
A lot of parents, she said, are “on pause” because they want to know what districts are planning for this fall before they file a complaint or join a class action.
As in New Jersey and Massachusetts, Litzinger said some families in Texas were also asked to sign waivers absolving districts from special education laws or from following what is in a student’s IEP during school closures. Her group has told them, “please don’t sign anything” and to get an expert to review it. A parent in the Northside Independent School District, for example, was asked to sign a temporary “continuity plan” explaining how services would be modified while schools were closed.
Eisenberg said such waivers “would not pass legal muster.” And Phyllis Wolfram, executive director of the Council for Exceptional Children’s school administrators organization, said she has advised districts not to send blanket waivers to families and to instead “continue to work individually with families on what they could provide.”
‘A mixed bag’
Still, remote learning benefited some students with special needs, even if they didn’t receive all of the services in their IEPs.Tracy James, a grandmother in Escambia County, Florida, called distance learning — and her thoughts on schools reopening — “a mixed bag.”
While at home, her oldest grandson Kyrian, who is entering first grade, avoided behavior problems that sometimes landed him in the “seclusion or isolation room” at school. But he missed out on the speech therapy he would have received in the classroom. Her younger grandson, Karsen is entering the state pre-K program. Because he’s still developing language, James said he needs the “initial in-person engagement” of a classroom.
For this fall, she and her daughter have decided on a virtual school option for Kyrian and have been promised that he’ll receive speech therapy later on.
And other families were impressed with how their schools handled the shift to remote instruction. Wendy Mauer, whose son Carter attends Suchma Elementary School in the Conroe Independent School District north of Houston, even dropped a complaint filed with the state education agency over his IEP because of the school’s approach, which included home visits by her son’s teachers.
“We had several IEP meetings online and communication with staff was completely responsive,” Mauer said. “When I expressed his work was not with accommodations, they immediately provided that service. The district also had an outstanding online learning portal for parents to navigate for resources and activities by their district curriculum specialists.”
Looking toward the new school year, Wright in Mississippi said, many districts are planning to include those with special needs in the “first tier” of students that are brought back into schools for in-person teaching.
“This is a place we’ve never been. And I’ll be up front about it, I don’t have all the answers,” she said. “We’re all trying to right this ship.”
Some states are already using federal relief funds to help districts do a better job of providing special education services. Oklahoma, for example, has drawn from both the Elementary and Secondary School Emergency Relief Fund and the Governor’s Emergency Education Relief Fund — part of the CARES Act — for a grant program that can be used for special education services. Of the 345 districts receiving the grants, 74 said they would use the funds for that reason.
In June, the Tennessee Department of Education announced that school districts would receive an extra $5 million on top of what they would normally receive in federal funds for special education to cover additional services, often delivered in the summer or after school.
But that was back when state and district leaders were likely thinking students would be returning to school next month as normal. Now there is no clear end to what services the additional instruction or therapy would be compensating for.
“It sounds like a good idea, but now we’re months later,” Tucker said.
‘Enormous academic needs’
Some experts say both school districts and parents need to move beyond the question of how to duplicate special education services — as spelled out in an IEP — in an at-home setting. An IEP includes specific goals for each student. But it also details the types of services or accommodations needed to help the student reach those goals, as well as where and how often those services will be delivered.
As long as parents’ demands focus on specific hours of therapy sessions, for example, there will be an uptick in litigation, said Nathan Jones, an associate professor of special education at Boston University. He also recently co-authored a reopening research brief focusing on special education.
While students have a right to what’s in their IEPs, he said it’s more important now to focus on what students need academically to regain what they’ve lost and to make progress when school resumes. How, he asked, are schools “going to meet the enormous academic needs students present when they walk in the door, whether it’s in person or virtual?”
He highlighted New Hampshire Gov. Christopher Sununu for requiring IEP teams to meet before the end of the school year, to offer extended school year services if needed, and then to have another IEP meeting within 30 days after the school year starts.
Rather than encouraging families to file complaints, Siegel in Florida said she’s advising families to focus on making sure their children are assessed when school starts and to determine what additional services will be needed.
“Honestly, this is not a point-your-finger blame game,” she said. “We’re in this pandemic together.”