“Long COVID” Cognitive Impairments and Their Implications for the Special Education Community

Photo credit: Marco Verch

On July 22, 2021, The Lancet published an article by Adam Hampshire, et. al., in which the findings reported that COVID-19 causes long-term cognitive impairments among many of those who have been ill with it, particularly those who have been hospitalized with severe forms of the illness and those diagnosed with COVID-19 but not hospitalized. I won’t rehash the entire article here. Follow the link to read it for the details.

In today’s post/podcast, I’m summarizing the findings of this body of research and discussing their implications for the special education community. First, let’s look at what the cognitive impairments caused by COVID-19 can look like, and then we’ll talk about what this means for the special education community.

This research by Hampshire and his team specifically found: “[The] results [of this study] accord with reports of ‘Long Covid’ cognitive symptoms that persist into the early-chronic phase. They should act as a clarion call for further research with longitudinal and neuroimaging cohorts to plot recovery trajectories and identify the biological basis of cognitive deficits in SARS-COV-2 survivors.”

So, basically, there is evidence to support that if a person gets sick with COVID-19, they can experience cognitive impairments that last a long time, perhaps permanently, and further research is needed to understand the long-term consequences of millions of Americans having their cognitive functioning reduced by COVID-19. For our kids about to go back to in-person learning, the questions become about whether they will end up subjects in that research after getting COVID-19 and experiencing cognitive impairments, and what will be done to benefit them if they are affected in such a way.

The symptoms, specifically, were reported by Hampshire and his team as: “… colloquial reports of ‘brain fog,’ … low energy, problems concentrating, disorientation, and difficulty finding the right words.” Further, there is evidence that “… COVID-19 patients can develop a range of neurological complications including those arising from stroke, encephalopathies, inflammatory syndrome, microbleeds, and autoimmune responses,” any of which can cause brain damage or impairment.

As children face returning to school as the Delta Variant of COVID-19 rages through unvaccinated populations, including children under 12 who are not eligible for vaccination, all parents in their right mind are worried about their children getting sick. The risk of long-term cognitive impairment during the critical learning years of child development and/or permanent brain damage are now yet more reasons for parents to want to keep COVID-19 far, far away from their children.

The sad reality is that a lot of children in areas of the country with low vaccination rates, many of which are communities compromised by poverty and reduced access to resources in the first place, are going to get COVID-19, and a fair number of those that survive are going to experience cognitive impairments as a result. This means a whole new cohort of children entering special education who otherwise would not have required it, thereby increasing the special education burden of every local, state, and federal education agency.

For those children already on IEPs who get sick with COVID-19 only to be further cognitively impaired by it, we’re going to see changes in their present levels of performance that make their current IEPs no longer appropriate to all of their needs. They are likely to experience regression and an increased need for supports and services in their IEPs, meaning yet another increase in the burden on local, state, and federal education agencies.

This is, of course, preventable with appropriate safety measures. The problem is that we have some local and state leaders doing everything they can to spread the disease, banning mask mandates in our public schools, for Christ’s sake! We have millions of unvaccinated children expected to co-mingle in crowded spaces that will become super-spreader sites that induce cognitive impairments among the students who are there for the purpose of enhancing their cognitive abilities.

And, it’s the same conservative leaders who are pushing to ban mask mandates in schools who will refuse to fund their students’ special education services when they come back to school with cognitive impairments later on. Parents can fight together now to prevent their children from becoming cognitively impaired, or at least more impaired than they already are, by pushing for appropriate safety measures in our public schools, or a smaller but significant number of them can fight later on for special education services for their children who experience “Long COVID” and resulting neurological impairments.

Aside from the obvious lingering health problems that children who experience and survive COVID-19 can have, which will require ongoing care that parents previously weren’t having to provide, there are the added complications of learning problems that will require parents to exhaust themselves further to pursue. Special education was already falling grossly short of the mark, but we’re now in the process of creating the next large population to blaze a litigation trail across the judiciary with special education cases: COVID-related impairments.

As it stands, regardless of the symptoms, if a student who survives COVID-19 ends up with long-lasting health and/or cognitive problems that interfere with access to learning, the fact that it’s the result of COVID-19 could cause that student to meet criteria for “Other Health Impairment (OHI),” under special education law [34 CFR Sec. 300.8(a)(1)]. It’s not like a new eligibility category would need to be created.

The special education world went through similar chaos during the 1990s when Attention Deficit Hyperactivity Disorders (ADHDs) first became understood and widely recognized as an actual set of conditions. The University of California, Los Angeles (UCLA) ran a great big study on ADHDs. I remember attending a panel discussion by individuals who had participated in the study back in the day.

Back then, ChADD (Children with Attention Deficit Disorders, as it was known back then), was big on the advocacy scene while litigation went forward in the courts to determine if kids with ADHDs were eligible for special education. The ultimate outcome was that there didn’t need to be a separate eligibility category for ADHDs because they were captured by either the Specific Learning Disability (SLD) or OHI categories, depending on how each affected child experienced it.

Back in the early 1990s, I went to a speaking engagement at which the founder of ChADD, who was also one of the parents taking this landmark litigation forward, described the favorable outcomes the litigation had achieved, but also how awful it was to have to go through all of that and how vindicated his family felt in the end, particularly his child with ADHD.

I see the same thing happening here with kids who will be disabled by COVID-19 to such a marked degree that they require special education and related services in order to access education, and kids who already needed special education who will now become even more greatly compromised than they already were after surviving COVID-19. Plus, I see this happening the most in the states and locales least likely to protect their children against COVID-19, which are also the states and locales least likely to comply with special education law.

Far right politics have undermined the success of special education at the local and state levels since special education law was created. In fact, the laws that protect our children with special needs were created in response to these far right political efforts to deny them access to education. The situation has literally become life with permanent disability or death for far too many of our children, and still the public scrutiny on the right wing fuckery that goes on in public education has not become intense enough to change the broken system.

How much more broken will the system become when it has killed a percentage of its students and permanently disabled yet another percentage who will now require special education when they didn’t before or who will now need more intensive special education above and beyond what they were previously getting? At what point in the future will all of the associated costs created by neglecting our kids now finally matter enough for the tax-fattened hyenas that are undermining public education from within to realize it’s in their best political interests to actually protect and educate their students?

Political extremism in any form will derail the most sensibly created system, but public education was not sensibly created for the present times and the political extremism has always been part of it. Many have the misconception that public education stopped serving as an arm of the Patriarchy once it became a female-dominated profession. But, there is nothing professional about a bunch of “Karens” sitting around a table passing judgment over a single, low-income mom of color with a kid who has a mental health disorder and related behavior problems instead of helping her and her child.

Thankfully, the field is changing and we have more scientifically-minded people entering special education, but there are still a lot of the old cronies hanging in there for as long as they can before grabbing their pensions and running off into the sunset, leaving all kinds of poorly educated, if not traumatized, children in their wake. This country is going to through a reckoning in which ethics and the rule of law are at the heart and soul of it all. Ethics and the rule of law have always been the heart and soul of special education disputes, and I can only see what is happening on the national level as an expansion of what I’ve been fighting for the last 30 years.

The thing that also is getting lost in this debate is the impact of “Long COVID” on teachers, specialists, and administrators. How does inducing cognitive impairment among a public education agency’s personnel serve the public good? How is that an appropriate employment practice for any employer? Why are we willing to impair the minds meant to sharpen the minds of our children? How is this self-preservation as a species?

As a tough old broad who has already seen the kinds of bullshit these people can pull, and given how much bullshit the American public is starting to realize can happen within our supposedly democratic government based on what is now coming out about the 45th President’s attempted soft coup d’etat following the 2020 election, I don’t think I’m being hyperbolic or alarmist when I point out the travesty we’re creating for ourselves in increased special education expenditures by failing to prevent childhood cognitive impairments as a result of “Long COVID.” I’m hoping this message isn’t falling on deaf ears.

Pandemic Era Special Ed.



This video is not a regular part of any of our YouTube or Patreon programming. It’s something that we just needed to put out there because there are a lot of parents looking for answers, right now, and we have at least some answers that can benefit many families of children with disabilities and an ethical obligation to share that knowledge.

This isn’t a short video, but that’s what the pause button is for. You can always save it and come back to it later to finish, if you need to. You can watch it once and save it in case you need to refresh your memory later on about something. It’s a tool to help parents still dealing with shutdown and distance learning involving their children with special needs.

We’re going to leave this up on our YouTube and Patreon channels, our Facebook page, and our blog for so long as it remains relevant because we expect a whole lot of families will be going online searching for answers throughout this current new school year as the pandemic continues to rage throughout the country. No one really knows how long it will be before the pandemic is brought under control, and we all have to be prepared for shutdowns to come and go periodically as flare-ups happen until it is finally reigned in. Right now, many areas are currently on shutdown, including many parts of California.

Mentioned in this video, are two reference items:

  • New California legislation and California Department of Education (CDE) guidance as to school districts’ duties under the law, as supplemented by the new legislation, including the provision of in-home, in-person special education services if they are necessary for students to receive a Free and Appropriate Public Education (FAPE) during shutdown: https://bit.ly/3jInffh
  • A recent stay-put order issued by California’s Office of Administrative Hearings (OAH) requiring in-person, in-home services to implement a student’s IEP during shutdown: https://bit.ly/3hZfnFA

Additionally, in the video, the procedures adopted by one school district to provide in-person, on-campus special education assessments during shutdown using appropriate safety protocols were referenced. They can be viewed here: https://bit.ly/3jOkycf

Also, the book, From Emotions to Advocacy, by Wrightslaw, was referenced during the video as an excellent resource for parents trying to keep their cool and work strategically as they advocate for their children with special needs. You can find it here: https://amzn.to/31WH0JV *

If you have questions about special education, including school closure-related concerns, please post a comment or email us at info@kps4parents.org. Find us online at https://kps4parents.org.

Facebook: https://facebook.com/KPS4Parents

Twitter: https://twitter.com/KPS4Parents

YouTube Special Education Quick-Fix Videos: https://bit.ly/2Z0951d

Patreon Channels: https://www.patreon.com/KPS4Parents

Anne’s t-shirt reads, “Science. Because figuring things out is better than making stuff up.” While we couldn’t find the exact same design, we found this great design with the same statement at: https://amzn.to/3i1d7xC *

* Note: Fundraising affiliate links are included in this post. KPS4Parents is a non-profit organization and funds raised are applied towards our costs of providing low cost and pro bono lay advocacy services to children with special needs and their parents who are unable to pay our regular hourly rate, which is billed at cost.

Donations can be made to https://paypal.me/learnandgrow.

Copyright 2020, KPS4Parents. All rights reserved.

Public Education Version 2.0 and the Power of Stay-Put

Photo Credit: Matthew Cipican

I’m pained to open with the platitude that these are unprecedented times. We all already know that and belaboring it for the purpose of a proper opening paragraph seems to belittle the magnitude of the moment.

The truth is that I’ve been having a hard time coming up with the right place to start the next conversation on this blog. I had developed a publishing schedule for Making Special Education Actually Work just before the pandemic hit and the schools in California, where we are headquartered, shut down.

All of that went out the window the moment the shutdown started and I’ve since published some bits about how to respond to the situation based on what was known at the time of each publication, but how things have continued to play out, or not, from one school district to the next has been nothing short of pandemonium. Some of my kids have done so much better with distance learning that they never want to leave their houses again. Others have regressed so greatly since the shutdown started that it’s going to take years to undo the damage that has been done and catch them up to the degree its possible to do so.

Each kid, as a unique individual learner, has experienced the shutdown differently, but all of them are experiencing the same procedural violation at the hands of their Local Education Agencies (LEAs): Failure to implement the Individualized Education Program (IEP) as written. Or, framed in the language of the regulations, failure of the education rendered to conform with each student’s respective IEP.

In California, the State has already assumed that compensatory remedy will be due to most, if not all, of its special education students because of the shutdown. None of the laws changed. There are permissible, though narrow caveats, in the law that provide for extenuating circumstances.

While the implementing regulations of the Individuals with Disabilities Education Act (IDEA) mandate the application of evidence-based science to the design and delivery of special education on a child-by-child basis, it is only to the degree that the application of the science is practicable. LEAs bear the burden of proving that the delivery of a special education service is not practicable before denying it and giving notice of such via a Prior Written Notice (PWN).

The real dispute, it seems, is over what is realistically practicable given the circumstances, but that first requires us to operationally define what we mean by practicable, and that’s a problem. There is no legal authority or professional standard for what defines “practicable” within the context of 34 CFR Sec. 300.320(a)(4).

I know this because the operational definition of “practicable” was one of the burning questions I had when I went back to graduate school in 2011 and had answered by the time I graduated in 2013. The truth is that there is no operational definition in the scientific literature or the case law as to what is meant by the term, “practicable.”

Even Perry Zirkel was stymied by this question and ultimately concluded that most courts interpreted the definition of “practicability” as something to be left to the discretion of local education agencies – meaning, really, top administrators and board members, who are all politicians – get to decide what is and is not practicable as a matter of local governance. In those LEAs, “practicable” just means “if the LEA wants to.”

This, of course, neglects the fact that 34 CFR Secs. 300.320-300.324 vests the authority in IEP teams, which include the parents, to make determinations as to what is educationally necessary and, therefore, the obligation of the LEA to provide to each given special education student. If that authority is vested in the IEP team, then no one from the LEA on the IEP team should have to go get the approval or permission of a superior outside of the IEP meeting, particularly when that superior has no direct knowledge of the student’s unique needs or the IEP team’s discussions about them. Whether or not something is practicable should be an IEP team decision, not an internal policy issue, yet the research that has been done suggests its a call to be made by top administrators, not individual IEP teams that include the students’ parents.

Further, 34 CFR Sec. 300.321(a)(4)(iii) mandates that each IEP team include at least one LEA representative who is “knowledgeable about the availability of resources of the public agency.” Usually, this is an upper-level administrator from the main office who not only knows what resources the LEA has, but has also been granted the authority to commit the LEA’s resources to a student’s IEP. This can come in the form of committing existing resources to the IEP as well as procuring those materials and services that are not already available through the LEA.

I’ve been in IEP meetings during which such an administrator fills out and submits online requisitions for use of existing assets, as well as online purchases and purchase orders through their LEA’s internal automated workflow system, during IEP meetings as the team agrees to things that are needed but not already on hand. It’s not that uncommon and it goes a long way towards doing it right the first time.

Again, there should be no going to someone else outside of the IEP process for permission or approval. In one fairly recent meeting I attended, the school district’s administrator on the IEP team shared her screen with the rest of us so we could all look at our options on Amazon together as an IEP team and make the purchasing decision right there. Then, “click,” it was ordered and the student had his accommodations the next day. Easy peasy.

The law does not provide for the IEP team’s authority to be displaced by or shifted to an uninvolved third party. If no one on the IEP team from the LEA knows whether the LEA already has the necessary resources available or will need to purchase stuff it doesn’t already have, it’s not a real IEP team.

Because these decisions are IEP team decisions, and not the decisions of removed administrators who are motivated by factors other than the individual needs of each special education student, deferring to top administrators to determine what is or is not “practicable,” opens the door for a litany of procedural and substantive errors that will quickly create due process claims against the LEA. It behooves no one for LEAs to play this game, but plenty of them do.

Competent people have no motivation to do sketchy stuff and lie about it, so when you encounter this kind of behavior, it’s because you’re dealing with people who don’t know what else to do and/or are crooked through and through. What we are all now going through as a nation under the current presidential administration is a reflection of the crap I’ve been dealing with for nearly 30 years in special education local governance. None of this is new to me, it’s just now happening on a national scale. Maybe everybody outside of the special education community will finally believe me about this crap, now.

More often than not, what is deemed by an LEA as not being practicable is likely better framed as being something for which the LEA is simply not willing to expend the necessary funds. While it is unlawful under the IDEA to use fiscal considerations to determine the contents of a student’s IEP, it happens all the time. The language of IEPs are often deliberately kept vague and weak so that they are difficult to enforce or so that it is otherwise difficult to say that the education rendered failed to conform with the IEP.

I’m seeing this happen in a way with 1:1 behavioral aide support services, right now. I’ve got families barely holding it together, stuck at home with their severely impacted children who have serious behavioral challenges arising from their disabilities. They’d give anything for in-home 1:1 behavioral services, right now.

And, that’s the thing: they should already be getting it under the existing laws. On August 24, 2020, (the day before this post), the California Office of Administrative Hearings, which tries special education due process cases within the State, issued an order making clear that students who require in-person services in order to access and benefit from their educations, including during distance learning, must receive such services according to medically acceptable safety procedures regarding COVID-19.

Behavioral services are medically and educationally necessary, the California Department of Education (CDE) has advised that in-home services during the shutdown may be necessary in order for LEAs to comply with their IDEA requirements under the law, and, now, OAH has ordered a school district to provide in-home services as a matter of stay-put during the shutdown. This is huge! This settles the argument once and for all.

I know of at least one student who is currently getting in-home behavioral services through his health insurance, which is the only reason he was able to participate in distance learning during the last half of the Spring 2020 semester. The same agency currently serving this student through his health insurance had previously served him as a Non-Public Agency (NPA) under his IEP in the public school setting. Same people, different funding source, different willingness to send personnel to his house for in-home, 1:1 behavioral aide services.

His school district has offered to provide an aide online during distance learning, like somehow that’s going to produce the same educationally substantive outcome of getting him to engage in the online instruction in the first place and remain engaged throughout each lesson. The boy needs an in-person 1:1 aide in order to access the instruction at all. How is he supposed to access online aide support when he needs in-person aide support to access any kind of online services?

And, he’s one of many students on my caseload with similar needs; he’s just the only one I know of currently living the experience of having the in-person 1:1 aide support during shutdown and being met with educational success because of it. Everybody else is asserting the need for it, but not getting it, and due process cases are popping up everywhere now, including among my students for whom I never thought litigation would realistically come to fruition.

The legal authorities favor special education students on this issue, and school districts in California are now having to weigh the risk of litigation from unionized employees against the risk of litigation from parents of students with special education needs as this whole debacle clatters forward in the absence of unified leadership across the State’s public education system. Many districts are still clinging to outdated paint-by-numbers procedures and fill-in-the-blank on standardized documents and forms, aiming for procedural compliance without thought to the substantive considerations … like providing 1:1 aide support via Zoom to a student who needs in-person support in order to access instruction via Zoom in the first place.

It’s like they think conforming with the IEP in any way complies with procedure, even if it entirely fails to meet the instructional purpose it’s supposed to serve from a substantive standpoint. The real tragedy, here, is that these paint-by-numbers bureaucrats don’t understand how to act according to the substantive needs of the student; they just want to know which form they are supposed to use.

This significant subset of the public workforce may have memorized many of the procedures for the job and can usually find the right form to use, but don’t ask them to actually engage in deductive reasoning, creative problem-solving, troubleshooting, or solution-seeking. They simply can’t. They don’t think that way. And, the human resources department didn’t recruit for people who can think for themselves on purpose.

The middle management jobs require drones who respond to authoritarian hierarchies of leadership and do not question the orders they are given, if the system is going to function according to its bigoted design. And, that is how it has been functioning for the last few decades following the passage of federal civil rights laws, including disability-related laws that first started passing in the early 1970s, up through the Americans with Disabilities Act (ADA) in 1990.

Those laws were necessary because the public education system, among others, was actively discriminating against children with disabilities, including denying them even enrollment. The public education system was already discriminating against students with disabilities or the laws would not have become necessary.

When the laws passed and the public education system was ordered to comply, those individuals who had been philosophically opposed to accommodating learners with disabilities were still employed by the public education system, by and large. They didn’t all leave. Many stayed and have been sabotaging it from within this entire time. And, they recruit people who are too incompetent to realize they’re being used and/or too afraid of losing their jobs to dare question what is really going on, so they can maintain positions of authority and control according to their own fascist belief systems rather than their mandates under the law.

One of the most powerful things to come out of the current state of affairs in this country is the cracks in the publicly funded systems that people like me have been squawking about to no avail for decades, but which can no longer be denied by the masses. As we move forward to rebuild a better America in the wake of the destruction currently happening all around us perpetrated by people with way more authority than they can responsibly handle, it is painfully obvious that we have a disturbingly large swath of the adult population that “pass” as competent adults but who actually are not.

These individuals occupy a great many niches of society, including in the public sector. Their approach to leadership, when they are allowed into offices that require more of them than what they possess, is destructive. It can ruin a child’s future through educational malpractice at the local level or fan the flames of a global pandemic and domestic terrorism at the national level until it ravages the entire nation.

These individuals place cronyism over science because they are not smart enough for the science and, frankly, they’re not smart enough to cover the tracks of their cronyism. They have simply had the power of money behind them and those without money have had to tolerate their malarkey as a matter of survival. But, now that tolerance doesn’t even achieve survival for those without, so they aren’t motivated to tolerate the malarkey anymore. Look out Marie; here comes the guillotine.

Society has finally had its fill of incompetent bullies acting like they are better than the rest of us to the detriment of us all and for no other reason than to stroke their own egos and line their own pockets. We have become aware that they are too dimwitted to realize the harm in what they are doing and too selfish to have any sense of compassion or empathy for the people they hurt.

These individuals are emotionally still children, trapped in their bodies for decades without maturing, thinking their chronological age and changing external appearance are all of what earns them respect as adults, and often unable to fully engage in adult-level problem-solving and critical thinking tasks, but able to develop academic and/or professional skills that can otherwise allow them to “pass” as competent.

These are high-functioning individuals with significant impairments in judgment who engage in intuitive rather than deductive reasoning. Intuitive reasoning is age-typical in young children. It’s indicative of an impairment in adulthood. It co-occurs with egocentric thought, in which the individual is incapable of engaging in perspective-taking and appreciating the experiences and viewpoints of others.

An egocentric person is the center of their own personal universe. Everyone else is just an object in orbit around them who may or may not serve a useful purpose at times and is only accessed when the egocentric person thinks an individual is useful.

The egocentric person recognizes his/her/their own agency – that is, the ability to act upon the world to produce intentional outcomes – but they struggle to appreciate the agency of others. They tend to only perceive other people relative to their own thoughts and feelings and fail to consider that other people have their own thoughts and feelings that are each different from one person to the next.

Egocentric people tend to assume that whatever they are thinking and feeling is what everybody else is also thinking and feeling, and/or that everyone else’s decisions are made with the egocentric person in mind. The egocentric person struggles with perspective-taking, which requires that they first understand the agency of others and that everyone is preoccupied with their own thoughts and feelings, not making the egocentric person the focus of their every decision.

Errors of omission and thoughtless, inconsiderate acts by others are perceived by egocentric people as deliberate efforts to cause harm or offense to the egocentric person. Because egocentric people assume that whatever they want and need is automatically understood by everyone else, which is because they assume everyone else is thinking and feeling the same things they are, if everyone else fails to deliver according to an egocentric person’s expectations, the egocentric person attempts to force the desired response to present itself.

Because they lack the emotional intelligence to navigate many types of complex situations involving other people, whatever cognitive abilities they may actually have don’t do them much good. They make errors in judgment when it comes to how they interact with other people; how well they can do math, design a building, or research historical biographies just doesn’t matter in that moment.

When people like this become employed within the public sector and have to make policy decisions, they are incapable of putting themselves into the shoes of their constituents and engaging in legitimate representation and advocacy for services that meet the of needs of those they have been hired to serve. Because of their egocentrism, the job is a means to a self-serving end. Also because of their social/emotional developmental impairments, their ability to actually engage in adult-level problem-solving as required by their positions is equally limited.

Because they can’t actually meet the performance requirements of the job, they find ways to socially engineer their ways to the top, including taking credit for the accomplishments of their subordinates while sycophantically leeching onto the coattails of those who have grifted their way up the food chain before them. They all keep each other’s dirty little secrets about not actually being able to do their jobs and abusing their positions of authority to the benefit of the highest bidder, be the currency money, power, or both.

Eventually, an emperor emerges from the mix, some traveling salesmen weave him a in invisible robe from gold thread that, allegedly, can only be seen by competent people, and, as he’s parading down the street in this magical garment, a child points out that he’s actually just a naked guy played for a fool by a couple of con artists who have since skipped town with a fortune in gold thread. I’m paraphrasing the parable, here, of course.

The problem is that a public institution can become such a hopelessly dysfunctional system that it’s really better to take it down the way the Attorney General (AG) of the State of New York is trying to take down the National Rifle Association (NRA), right now. When the corruption runs as deep in a public agency as New York’s AG asserts is the case with the NRA, it’s better to scrap everything and start over with all new people and a new method of operating that conforms to the appropriate standards.

Sometimes the well becomes so hopelessly poisoned that it’s just time to dig a new well. I think America is at that crossroad in a very broad and general sense. We are at the tipping point of a crisis of conscience.

Who do we want to be? The cronyistic incompetents who stab each other in the back over superficial slights, engage in power grabs like reality TV show contestants, and are utterly detached from and incapable of living up to the responsibilities of the job? Or, the hard-working, methodical, responsible adults who understand and are humbled by the responsibilities before us, know that our efforts to do things right will pay off in the long run but we’re going to have to struggle in the short term to clean up the messes we’ve collectively made?

So many people who came before us fought and died so that we could have the freedoms and legal tools to save our democracy, right now. I have been fighting this fight since the 1990s, but I have also lived the reason for this fight as a twice exceptional student who was never identified for any kind of services or accommodations for my processing disorder when I was a K-12 student. During the 1970s and 1980s, when Section 504 and what is now known as the IDEA were new, they were not being implemented by the overwhelming majority of public schools in the United States at the time, and certainly not in Louisiana and Arkansas, where I grew up.

I was briefly put on Ritalin in my early elementary years. But, who wasn’t, back then? I was later diagnosed with “minimal brain dysfunction” in junior high as the result of a quest for a reason why I couldn’t walk in heels (there was great social pressure on females in the Deep South at the time to wear pumps with everything, including jeans). I had to do physical therapy to stretch out my hamstrings and heel cords from all the years of toe-walking I’d done (which, by the way, toe-walking can be a neurological soft sign of autism).

My vestibular sense and my proprioception were jacked. My reflexes were/are abnormal. I can distinctly remember having visual processing issues that made it such that my brain couldn’t piece together what I was looking at to make a picture of the world that made any sense. Abstract shapes would slowly resolve into a singular whole that then made sense, but I can remember having to wait for that visual resolution to occur at the brain level before I could start understanding what was happening around me. My eyes could see, but there was lag time between when I looked at something unfamiliar and my brain was able to put the shapes together in a cohesive way that I could understand. My last recollection of that happening to me was around 8 or 9 years old. I can remember it happening a lot prior to then.

I also had very bad vision, so it could have been that my brain didn’t get the requisite practice at piecing together the parts of what I saw into a cohesive whole until I got glasses and could actually see everything clearly. I don’t have ADHD; I have ADH – Oooh, shiny! I also have mild hearing loss due to a condition that runs in my family. My dad and many of my cousins have hearing aids. I haven’t gotten to that point, yet, but it’s coming, eventually and that’s okay. Worse things could happen; hearing aides don’t ruffle my feathers in the least. I’m just not spending the money until I have to.

The point is that I had a mixed bag of processing issues as a kid that was somewhat offset by my processing speed, but not enough to make me academically successful. I know what it’s like to have my potential wasted by people who don’t understand my needs as a developing child. The adults in my life cared, but were at a loss as to what to do because the science just wasn’t that good or well known at the time, and certainly not where I grew up. They couldn’t begin to abide by the relatively new civil rights and special education regulations; the science behind it was way beyond them. They didn’t know any of that.

But, that was a long time ago. We don’t have those same excuses, now. Adults like me who used to be those struggling students decades ago are everywhere now in public education advocacy, rights, and reform efforts. We know first hand why it’s so important for the public education system to engage in person-centered planning for every student, not just those identified as having something “wrong” with them.

We also understand why it is so important to identify those who do have exceptional needs, and meet those needs, so these students have equal access to learning as that given to their peers without exceptional needs. We understand why it is so important to address the disabilities of our twice-exceptional students while simultaneously nurturing their gifts. Last year, Kodi Lee brought the point home to the lay public, which had not had any similar prior exposure to twice-exceptional people, and certainly not one so impactful.

No matter how impaired someone may present, the public learned to never assume that such a person’s presentation accurately captures all of who that person is. Kodi humbles people in the kindest, most innocent, and inadvertent way, which is what makes him so powerful. He isn’t trying to ram a message down anyone’s throat. His existence is the message; he lives it for the rest of us to observe and copy.

Kodi is a powerful living metaphor to not judge a book by its cover, which has been a recurring lesson born over the last few years of these talent competitions happening around the globe that he simply drove home with an exclamation point. The cultural norms surrounding public opinion of people with disabilities have tipped strongly in the direction of inclusion by the display of capability and superior abilities by contestants with a wide variety of impairments in these competitions.

Leave it to the entertainment industry to be the agent of change. If we live in a shallow culture in which life imitates art, then art should model appropriate behavior, such as inclusion. I’ll say this for Simon Cowell: he made inclusion marketable and profitable by allowing talented people to be defined by their acomplishments rather than their limitations. At the end of the video clip of Kodi Lee’s first audition for America’s Got Talent, after winning the Golden Buzzer, the judge who had awarded it to him, Gabrielle Union, told him straight to his face, “You just changed the world!” and she wasn’t lying.

This is part of the brave new world that is to come as we rebuild our public education system to meet the needs of today’s students in the 21st Century, including the flexibility to rapidly adapt to changing lifestyles, national emergencies, job market demands, and advancing technologies. All of these things will continue to collectively alter how we teach and manage the teaching process according to best practices, and continue to engage in ongoing research to continually improve those processes and their supporting administrative procedures.

Which circles us back around to the issue of stay-put and the recent stay-put order from OAH, linked to above. While the order is limited to California, it is germane to a federal district court case being tried in the Central District of California in which the plaintiffs, which include parents of children with extreme special needs who are not getting the 1:1 in-person services required by their IEPs, are suing the State over school shutdowns and attempting to get a federal court injunction that allows school districts to decide whether to reopen or not.

Not surprisingly, the case originates out of Orange County, California, which has a large extreme right population relative to the rest of the State and is, not coincidentally, also a COVID-19 hotspot within the State. COVID deniers abound and are having a deleterious impact on local governing decisions as they impact public health. For a lawsuit disputing the legality of school shutdowns over a legitimate public health crisis to emerge from this climate is not exactly a shock.

Not also surprising is the rampant special education violations and related scandals that have plagued Orange County for decades. Egocentrism is confused with personal civil liberties, and the welfare of others is beyond comprehension, resulting in extremist beliefs and behaviors. It is not shocking to me that school board members who have been actively violating special education and civil rights law convinced a bunch of parents who they were actively screwing over to join them in a federal lawsuit against the State to force the schools to reopen in order for their kids to access services.

If you read the plaintiffs’ complaint compared to the legal authorities I’ve already cited previously in this post, it’s plainly evident that these people don’t know what they are doing. I spoke with the State’s lead attorney on the case last week and shared the arguments I’ve now presented in this post with her.

While the judge has yet to decide the case, and, in fact, today is the filing deadline on briefs regarding the exhaustion requirements under the IDEA and the California Department of Justice (CADOJ) is on it, the nature of the questions the judge asked the parties to brief in his last minute order inclines me to believe that once those questions have been answered, we’ll have a federal district court decision on the matter that will apply to every school district in California.

The CADOJ’s arguments must naturally rely in part on the arguments I’ve asserted herein. The federal district court judge will likely defer to the OAH stay-put order that was just issued yesterday, given that OAH has the authority to try special education cases and is, therefore, authoritative on how the law applies to the rights of special education students, special education students must exhaust their due process rights through OAH before filing in federal court (generally speaking), and it is proper for the federal court to defer to OAH’s judgment, which will mirror the arguments I’ve been asserting this whole time and which CADOJ will also be asserting. They are aware of yesterday’s stay-put order, as well, just in time to meet their filing deadline.

Things are about to get a whole lot more okay for a lot of kids on my caseload. Whether their LEAs capitulate and provide the services or we end up going to hearing with the right kinds of legal authorities backing us up, either way, the rule of law is working slowly but surely and the application of the peer-reviewed research to the delivery of special education, now that reform is unavoidable, is about to enjoy a new era of advancement in the education of all students, not just our students with the most demanding needs.

It’s always darkest before the dawn. An extinction burst of escalated behaviors always comes before a maladaptive behavior finally becomes extinct. We are riding out one heck of an extinction burst on the part of incompetent people whose cronyism and transactional relationships have defined their realities and ours, and who cannot function in a more advanced, emotionally intelligent society that is moving increasingly towards meritocracy in which actual ability and earned achievements promote social status. Hucksterism has become obsolete. The Patriarchy is now rightly seen as a pack of egocentric ghoulish caricatures, not as dignified elites worthy of worship by everyone else.

These moments will pass and we will have the power to make something new and better once we get to the other side. This latest stay-put order and, hopefully, the upcoming federal court decision, are incredible first steps in the right direction.

What About Kids with FAPE Claims that Pre-Date Quarantine?

As much as special education in general is all up in the air in most quarantined school districts, with unlawful conduct being perpetrated by school officials who have never believed in the IDEA seeing this as an opportunity to get rid of its obligations while still collecting federal special education dollars, there is a subpopulation within special education that is even more affected by this than others. That subpopulation is made up of the students whose educational and civil rights were already being violated by their local education agencies (LEAs) prior to the quarantine.

There is huge debate going on right now about Betsy DeVos, the Trump Administration’s appointed Secretary of Education, and the waiver power she does and does not have under the law to exempt school districts from delivering a Free and Appropriate Public Education (FAPE) to students with disabilities. Congress has now asked her to testify as to what parts of the IDEA she thinks needs to be waived and we don’t know how it will vote on the matter.

More and more comes out on this topic each day. The Council of Parent Advocates and Attorneys (COPAA), the national nonprofit professional organization that advocates and, where necessary, litigates on a national level on topics like these has published its own policy statement about the current situation, which can be found on the COPAA website.

Currently, there are no waivers of the IDEA in place. The only exemption right now is that LEAs that are not providing distance learning options to their general education students don’t have to provide education to their special education students, either. Until there are actual Congressionally approved waivers, nothing has changed with respect to implementing the IDEA for those special education students served by LEAs that are currently providing distance learning to their general education students.

Nonetheless, I have four families with students in one particular school district that is currently providing distance learning to its general education students and something half-baked in terms of online options for its special education students. All four of these families received generic Prior Written Notices (PWNs) over this last weekend advising that it’s impossible to implement IEPs under the current circumstances, even though it very often is possible and the administrator sending these things out has a decades-long history of throwing money at lawyers to defend her decisions instead of actual services for students. Three of those families already have due process cases filed or about to be filed.

Just like everything in special education, PWNs are supposed to be individualized to each student, but she sent the same PWN to the families of everybody in her district in special education, telling them all that implementing their IEPs under the circumstances is impossible with no examination of each student’s unique, individual situations. She may have finally dug herself into a hole that she can’t get back out of.

This administrator made unilateral decisions on behalf of her district outside of the IEP process during a time when the IDEA has not been waived in any kind of way, in part or in whole. It’s a systemic violation of the law memorialized in writing on district letterhead to the family of every special education student in her district. She may have well just created a class action lawsuit against her employer.

Children with disabilities from low-income, single parent, immigrant, and non-white households were already getting the short end of the stick when it comes to special education. Being white and affluent doesn’t necessarily protect you, but it does increase your odds of avoiding at least some FAPE violations.

That said, the aforementioned administrator sending out PWNs that break the law on her employer’s behalf worked most of her career for an affluent school district where the only way to get a decent IEP was to sue the crap out of her district. Her department would play to the egos of affluent parents and tell them special education was a welfare service and they would be better off privately paying for services, thereby collecting federal IDEA dollars without actually having to spend them on services.

Now she’s working for a district in an economically depressed community with a largely Latino population and is preying on low-income, non-English speaking, families of color. Maybe she thinks they aren’t going to stand up to her taking advantage of the pandemic to bring in IDEA dollars without having to deliver on IDEA obligations. She’s wrong.

I already had cases that were pending due process on my caseload when this pandemic hit. The students involved in those cases were already being under-served, if served at all, and now they’re sitting at home with even more nothing. One student’s parent has an elderly parent in a nursing home she can’t visit and is working from home (or at least trying to) while her adult autistic child who is still eligible for special education has one meltdown after another because of the sudden disruption in routine and her inability to go out and do anything (trips into the community were being used as reinforcers as part of her behavior program, as well as community-based instructional opportunities, before all of this hit).

This parent is understandably furious. All that she’s gotten so far from her daughter’s teachers is a useless Google classroom link that takes her to a page full of nothing to do with her daughter’s IEP goals. And, while her daughter’s IEP makes clear that she requires “highly trained staff” to meet her goals, all she’s got right now is her frustrated mom and useless downloaded worksheets that her mother doesn’t know how to teach to her and she doesn’t know how to complete. There is no support from the teaching staffs to help this parent engage her daughter in the distance learning option, such as it is, that they’ve been given.

This student is from the same district mentioned above that is sending unlawful F-You letters on PWN forms to its special education families. I have three other students in this district, two of them already with litigation pending for violations that occurred before the quarantine. They were already being denied a FAPE before quarantine, and they sure as hell aren’t getting a FAPE now.

I’ve already written about the impact of the quarantine on special education before to some extent, but I want to hammer a particular point once again: Many special education students are at risk of significant regression, which is the loss of previously learned knowledge and skills, during lengthy breaks from instruction. These students are eligible for Extended School Year (ESY) services for this very reason; summer breaks, and sometimes winter breaks, are just too long for them to go without services or they have to make up for lost ground once they return to school, which makes them unavailable for learning anything new.

The impact of the current situation on these students in particular stands to compound an already egregious denial of FAPE. If they were already being denied a FAPE before this all happened, additional regression on top of that will create deficits that will never be overcome.

As of right now, no IDEA waivers have been permitted. Congress is waiting for Mrs. DeVos to tell it what waivers she wants to push through in response to the pandemic and mass quarantines. There is significant fear that the waivers Mrs. DeVos will request will include exemptions from implementing all or part of the IDEA.

The consequences to students if Mrs. DeVos is successful in getting IDEA waivers are obvious. What is not quite so obvious is what becomes of federal special education dollars to school districts if she manages to get any or all of the IDEA waived. While some school districts may be ready to embrace reduced duty and accountability, do they realize that IDEA dollars are tied to complying with the law? Does Mrs. DeVos intend to use IDEA waivers to not only reduce accountability for the public schools, but to also reduce their special education funding? How many school districts are willing to walk away from special education dollars in order to get out of having to implement IEPs?

Parents of children with disabilities, their extended families, their friends, and any taxpayers who otherwise get it need to act on this right now. You need to reach out to your representatives in Congress to tell them that any IDEA waivers are unacceptable. There is a way to deliver a FAPE to most special education students right now; it just takes cleverness and ingenuity, things most government agencies are not particularly known for. Clever problem-solving is generally unaccepted in institutions built on political corruption.

So, here’s your call to action: Contact your Congressional representatives and tell them that no IDEA waivers are acceptable or necessary. Look up your Senators here, and your Representatives here. You can also use our easy-to-use form letter generator or sign our online petition. If you are listening to this as a podcast rather than reading it as a blog, you can find the links in the text-only portion of this post.

It shouldn’t be necessary to have to fight to keep civil and educational rights in place for our nation’s children, but it is. Many LEAs are pushing compulsory education laws by threatening families with truancy proceedings if they don’t participate in distance learning options, but then are looking for any and all excuses to not actually deliver a real education, particularly to their special education students.

These distance learning options are all about keeping those Average Daily Attendance dollars coming in, I assure you. LEAs can’t live without that money and its based on attendance, which is why they are threatening to criminally prosecute parents who don’t implement their half-assed distance learning options for truancy. But, to actually deliver a real education in exchange for those dollars seems too much to ask, and it’s a thousand times worse for students with special needs.

It may quickly become the case that the only way for families of special education students to protect themselves against unjustified truancy charges, which are tried by local superior court judges who know nothing about how special education is actually supposed to be delivered, is to file for due process and make the record that the education being offered to those special education students during quarantine is inappropriate to their needs and they are unable to access learning as a result.

Parents should not feel forced to make their kids do something that will not help or just make things worse out of fear of being criminally prosecuted for truancy if they don’t. The sad reality, however, is that so long as they log or call in every day to whatever distance learning platform has been made available to them, even if their kids aren’t learning anything, they will not be prosecuted for truancy because those logs will be used as proof of attendance so schools can get their Average Daily Attendance dollars. That still does nothing to ensure their receipt of a FAPE, though.

Now is the time to reach out to advocates and attorneys if your child with special education needs isn’t getting appropriate instruction and related services while sheltering in place. You can find people to help you by searching online for “special education advocates near me” and “special education attorneys near me.”

Just be careful of the con artists out there, though. There are lawyers who will claim to represent families but then cut backroom deals with the attorneys representing the LEAs in which they convince the family to sign settlement agreements that short-changes their kids and eliminates their claims against the LEAs. There are also lay advocates who mean well, but don’t know the applicable science or law.

You should be leery of lawyers who have been in practice for years but have no litigation history. If they could actually litigate, they’d do it. But, if they can’t, they’ll get a few thousands dollars in fees for selling out their clients via backroom deals cut with school district lawyers and administrators. There are sleazy people on both sides, so parents do have to be choosy about who represents them.

Your state should have some kind of online database of due process decisions that you can search by an attorney’s name. If no due process decisions come up with that attorney’s name, and they’ve been in practice for years, that’s a red flag. If you search the decisions by attorney name and the results produce only cases that the attorney has lost, that’s another kind of red flag.

The good lawyers’ caseloads already get impacted by this time of the school year, but this situation just takes it to a whole different level, so parents should find someone fast if they think they even might need the help. One source that helps parents find advocates and attorneys is COPAA. It has guidelines to parents for choosing a special education attorney and/or advocate, as well as a searchable directory of COPAA members by location.

You will note that I am not listed. I am not a COPAA member and with good reason. As much as I appreciate what COPAA does on a national level, particularly with respect to its amicus briefs, it has no membership options for paralegals. This isn’t about bashing COPAA because there are things about it that I genuinely love, but there’s also things about it that I find wholly unacceptable.

I’m speaking to my truth, not disparaging an organization that I am, here, deliberately telling parents they should check out as a valuable resource. My issues with COPAA are mine, but I’m sharing them here for the benefit of those who search the database I’ve referred them to, don’t find me on it, and wonder why.

If I go to the COPAA conferences, I can only attend the workshops for parents and other advocates, where I spend the whole time either biting my tongue or correcting the presenters because they’re disseminating misinformation, and I never learn anything I didn’t already know. I’m not allowed to attend any of the attorney sessions, even though I totally could use the MCLEs for my paralegal status.

I can’t even subscribe to the COPAA listserv for attorneys, even when it contains information that would benefit my supervising attorneys for me to have access to it. My supervising attorneys are not even allowed to share it with me, even if it pertains to a task they are delegating to me. Until COPAA makes a space for me and people who work in the profession as I do, I can’t justify the expense of a COPAA membership or its conferences.

Besides, when I’ve gone to the conferences, I’ve walked through the tables and booths between sessions and, every year, there sits a table set up by a non-public school that broke one of my student’s arms during an unlawful restraint several years ago. When this issue was raised with COPAA the first time I saw this bunch at a conference, they ignored my supervising attorney on that case and continued to take money from these child abusers for the table space each year after that. I’m not okay with that.

Given the poor instruction options available to me at the COPAA conferences, the presence of known child abusers at the conferences, and the overwhelming evidence I’ve observed that far too many people only attend it so they can drink to excess and cheat on their spouses for a week, I don’t find the COPAA conferences worth the thousands of dollars in fees, hotel and travel costs, and lost billable time to be worth it. Plus, they hold it in the middle of the busiest time of the school year, which makes no sense at all. I’ve always got way too much work happening when the conferences are held to attend, anyway.

So, while I don’t have a high opinion of the COPAA conferences, I have a very high opinion of the brilliant legal minds that write COPAA’s amicus briefs and I’ve agreed with every one of them I’ve ever read 100%. Nothing is perfect and COPAA is a good resource for many. The actual work COPAA does, aside from its annual conferences, is stellar and I can look past the conferences for the sake of the bigger picture, which is legally protecting children with disabilities from educational and civil rights violations.

COPAA has taken on the U.S. Department of Education with bold, accurate words in legal proceedings that make my heart want to burst with pride in our profession. That’s what matters to me about what COPAA does. That is, in my opinion, the most important thing COPAA does.

If you are looking for an attorney or advocate, the COPAA membership directory can be a good resource for many parents. Just know that there are a lot of other professionals out there who are really good at their jobs who are not members, there are members who aren’t that good at their jobs, and there a non-members who haven’t signed up because they’re crooked and don’t want to get caught by those of us who are doing this work for the right reasons. Like everything else in life, it’s a mixed bag.

Being on the COPAA membership directory doesn’t automatically mean someone is good and not being on it doesn’t mean someone is bad. It’s just a list of people who work in this field and pay membership fees to COPAA, but it’s the only national directory of advocates and attorneys that I know of and it’s foolish to not regard it as a valuable resource. Just take it for what it is and don’t think that hiring a COPAA member automatically means you don’t have to put much thought into it.

As I stated before, the membership directory page includes links to COPAA’s guidelines for finding a qualified attorney or advocate, which is pretty sound advice. Regardless of whether an advocate or attorney is a COPAA member or not, COPAA’s guidance as to how to vet attorneys and advocates is still good.

If you are the parent of a child with special needs who is not receiving a FAPE while in quarantine and your LEA is providing alternative learning options to its general education students, as of the time of this writing, there are no waivers of any part of the IDEA and it is still fully in force. This isn’t about kicking your LEA while it’s down; this is about protecting your child from being kicked by his/her LEA while your child is down. LEAs have millions apiece of taxpayer dollars intended to pay for the education of our children and that damn sure better be what it’s spent on, regardless of the situation.

Students who were already being denied a FAPE before the pandemic are now further compromised. How this is going to play out in litigation remains to be seen. If the rule of law is followed, there are no exceptions to providing a FAPE right now. Any FAPE violations that were already going on before quarantine have not been made better by it and families in those situations very likely need to consult with a qualified special education attorney sooner rather than later, if they haven’t already.

This is a difficult time for everyone, but the true measure of a society’s health is how well it takes care of its most vulnerable members during times of crisis. While some fascist LEA administrators may see this as an opportunity to finally carry out their bigoted agendas and terminate special education like they’ve been wanting to since 1975, those of us who still prefer democracy to fascism have to stand up and enforce the laws that have been part of the fabric of our country for the last 45 years.

As soon as one civil rights law falls, all the rest of them fall, the tenuous thread that our democracy is holding onto right now will snap, and we will find ourselves suddenly living in a real oligarchic regime. The moment it becomes okay to violate the civil and educational rights of children with disabilities, it will become okay to violate everyone else’s rights, too. Every protected class – women, minorities, LGBTQ+ individuals, low-income families, single-parent households, etc. – will lose rights one by one thereafter until no one has freedom anymore, except the wealthy oligarchs.

While I am focused on the individual needs of the children and families involved, I can’t help but appreciate the over-arching ramifications for democracy at large. We protect everyone’s rights, or we protect no one’s. True democracy means everyone is equal, including special education students.

And, regardless of whether IDEA waivers get approved, no one is contemplating waivers of Section 504 of the Rehabilitation Act or the Americans with Disabilities Act (ADA). If the IDEA is no longer enforceable, those laws still are and Betsy DeVos has no control over them. So, if she manages to get IDEA waivers passed by Congress, families will still have recourse under 504 and the ADA, which can have harsher ramifications than the IDEA on LEAs.

The IDEA diminishes “equal access to education” but expects no expense to be spared in the pursuit of that watered down version of equal access; the ADA says “equal access” must be 100% equal, unless it creates an undue burden on the responsible party, which it has to prove. We’ve not had civil rights litigation under 504 or the ADA since either of them passed that sets a precedent for what we’re dealing with right now, but I can promise you that what special education students are getting at home during quarantine doesn’t come close to equal access to education as that being given to their non-disabled peers.

These are uncharted waters and only time will tell how this is going to play out, but it’s up to those of us who do this work and the families we serve to do everything we can to protect our children with special needs. Please contact your Senators and Representatives, tell them that no IDEA waivers should be granted, and let’s all keep the pressure on until we have an answer. In the meantime, nothing has changed and the law is still enforceable, so we need to enforce it.

While many courts have moved to a work-from-home model (I recently watched a federal court trial in which Google was accused of aiding and abetting the Taliban that allowed me to see into the homes of three federal court judges and the Plaintiffs’ attorney), some state special education hearing offices have closed down, ceased operations except to issue continuances and stays, and are accruing a backlog during quarantine that is going to explode with new cases from all the FAPE claims arising from school district misconduct currently going on. Parents may need to use this time to find an attorney, start organizing their evidence, and file to preserve their timelines, even if they aren’t going to get in front of a judge right away.

For families that were already facing due process before the quarantine, if their states are operating their complaints and due process hearings according to a work-from-home model, which Texas is doing, then there should be some kind of mitigation in place to prevent that huge of a backlog. If three federal court judges on a panel can hold a trial to determine if Google was complicit in the Taliban’s use of its technologies to engage in acts of terrorism from their homes, special education due process cases can be tried the same way.

If you have a due process case that was pending before the quarantine, then you’ve likely already been communicating with your attorney about what is going on. If you haven’t, yet, do it now. You need your attorney looking into what due process mechanisms remain intact in your state and what the procedures currently are. Any competent attorney will have already done this, but may be so overwhelmed by the sudden explosion of casework that is starting to happen that they haven’t had a chance to talk with you about it, yet. Don’t overwhelm them by stalker dialing ever 5 minutes, but do reach out and make an appointment to discuss how all of this impacts your case.

There is never a good time to participate in litigation. For most parents, “litigation” and “good time” generally don’t go together. But, this is definitely a worse time to be pursuing due process in a system that was already glutted with cases. The sooner you act, the better.

USDOE’s COVID-19 Special Ed Guidance to State & Local Ed Agencies

The United States Department of Education (USDOE) has issued guidance to state and local education agencies regarding the implementation of IEPs and the provision of a FAPE during the current COVID-19 pandemic and resulting quarantines.

Click here to download the PDF.

The PDF includes links to other important resources, including the CDC’s guidance to schools regarding safety protocols. Much of the guidance provided by USDOE in its PDF mirrors what we’ve been saying all along.


Special Education Still Has to Be Individualized During Quarantine

During these unprecedented times of both urgency and delay, I’m finding that the ways in which I share relevant information with our audiences depends on the nature of the information that needs to be shared. Nuanced issues in which science and law become inextricably intertwined and live on as continuing issues, whether we’re in quarantine or not, remain appropriate for our Patreon patron-supported video channel, The Nexus of Special Education Science and Law, while time-sensitive updates and guidance to our audiences as to how to respond to various developments as they happen are more appropriate for our blog and corresponding podcast, Making Special Education Actually Work.

The reality is that producing the videos are way more involved than producing blog posts and podcasts. If we’re going to invest our limited resources into making a video, it has to address an issue that will remain an issue for some time to come and live a long and purposeful life before having to be replaced with a more current version. This is why our most involved video productions are only for our patrons on Patreon.

That’s fine for what it is. It’s highly technical stuff for a highly technical audience. Similarly, we have a podcast specifically for serious lay advocates to build their representation skills, but that is again highly specialized for a specific audience and patron-supported by its paying subscribers.

For information that is too time-sensitive to take days to be made into a decent video around my busy caseload and needs immediate attention from all our audience members for the sake of the general good, our regular blog posts and podcasts through Making Special Education Actually Work are much faster methods of getting the word out, and a great deal of that content is free. So, with all that in mind, today I find it necessary to use Making Special Education Actually Work serve as our most immediate method of getting the following information to the front lines as soon as possible. Some of my worst fears are being realized across my caseload and, presumably, across the country.

It’s necessary for me to remind everybody that special education is individualized to the unique needs of each student. Now, suddenly, hundreds of thousands of special education students have experienced radical changes to their educational programs that each require an individualized response. How they continue to make progress towards their IEP goals while sheltering in place must be individualized just like all the rest of their respective IEPs.

The scope of this issue is unprecedented. Suddenly, every kid in America on an IEP in a quarantined community needs an IEP meeting to modify their respective IEPs to fit the current circumstances. Conforming to the IEP timelines under the circumstances is going to be incredibly challenging for school districts and they may end up engaging in the educational equivalent of triage, figuring out who is at most risk of regression and allocating resources to those students first before moving on to the kids who are likely to recover lost educational benefits by way of compensatory services later on and aren’t at risk for as great an amount of regression as those that require the most immediate attention.

Chances are, the kids with the most costly and involved programs are going to be the ones most at risk of regression if their services get interrupted, so starting with those students is probably the most logical place to begin. These are also the cases in which local education agencies are most at risk of doing something that denies a Free and Appropriate Public Education (FAPE), simply because the needs of our most severely impacted students are so significant and any small exclusion can create significant harm, even if accidental.

The most severely impacted students tend to be a relatively small number and figuring out how to deliver individualized services to them that can be reasonably calculated to achieve their respective IEP goals can be resolved first, when the most flexibility among the available resources is necessary. Then, students with less intensive needs can follow, stepping down to the students with the least demanding special education and related service needs at the end of the process.

Trying to shoe-horn a student with severe special needs into a solution using whatever is left over after everyone else has picked the resources clean is discriminatory. Solving the hardest problems first also creates conduits through which other solutions can be implemented, making it easier to solve the more numerous less challenging tasks, and makes them even less challenging to solve. Local education agency dollars previously spent on facilities may need to be reinvested in technology, additional personnel, and plenty of Personal Protective Equipment (PPE), to keep up with the federal mandates to provide a FAPE to every eligible student.

How much leniency the various triers of fact will be willing to give to local education agencies in special education due process hearings and appeals over the two years that follow this pandemic will depend on the unique factors of each situation, including the reasons for any delays that occurred, as well as the unique needs of the student for which individualized responses were necessary but for which resources were not readily available. Regardless of how much leniency is reasonable under the circumstances, the expectation is still that a FAPE will be provided to each eligible student, in accordance with both Section 504 of the Rehabilitation Act, and the Individuals with Disabilities Education Act (IDEA).

Congress did not build any specific contingency plans into the IDEA or Section 504 with respect to implementation during times of emergency, and certainly none that make it acceptable to suspend the protections offered by either Act. There is nothing that says these civil rights laws, or any other civil rights laws that protect people with disabilities, cease to be in force under any circumstances. They are in force at all times, even times such as now.

Anything less is humanity devolving into the Lord of the Flies, and there is absolutely no need for that, but advocates for people with disabilities are having to argue for equality in health care, right now, which is reprehensible! At this moment, the shortages of medical supplies in the areas most severely impacted by COVID-19 are forcing health care providers to decide who lives and who dies, just like in a war zone. The elderly and disabled are the least likely to receive life-saving care, at this point, and it’s unacceptable that our health care providers are being put in the position to have to think this way. Whether or not a person has autism should not determine whether or not they receive life-saving care.

We’re going to lose tens to hundreds of thousands of Americans unnecessarily because of the poor federal response to this situation since it first began. Disability and/or a complex medical history doesn’t automatically make a person unemployed or unemployable. We are losing great minds and true talents to this disease among younger individuals who were compromised by pre-existing conditions. Further, we’re losing people of all ages who had no pre-existing conditions at all, making the unfair distribution of resources in favor of those without disabilities even less justified.

The fact that we are having to actively enforce civil rights law through litigation and formal complaints with respect to access to healthcare during a global pandemic is disheartening. It means that, now more than ever, we can’t neglect the other areas in which civil rights violations against people with disabilities are also occurring, which includes special education. There has to be a unified voice on behalf of individuals with disabilities across all domains to stand firm on the civil rights protections that are already on the books and expect everybody else to also play by the rules. This is no time for anarchy.

With respect to individualized instruction and specialist services, I have to point out that very few students with significant special needs are going to benefit from online instruction. As medical supply production starts to ramp up, now that various industries are retooling their assembly lines to produce enough masks, gowns, latex gloves, etc., to keep all necessary personnel adequately protected and safe, it’s going to have to be accepted as fact that some students simply require in-person services in order to receive educational benefits under the current circumstances, and the staffs who need to provide such in-person services will require adequate protection to stay well and prevent the spread of disease.

Given the immediate shortage of PPE, it’s understandable that this time right now can probably best be used to lay the administrative foundation for how in-person special education services will be deployed once the protective equipment becomes available. But, it also means that many students will be due compensatory service minutes for any time lost, particularly if they are already showing signs of regression by the time in-person services finally start.

Given that states are deciding to close down their schools through the end of the Summer 2020 break and start again in the Fall of 2020, this is going to be a long-term temporary period of interim special education and related services that will have to be tailored to each individual student affected, just as it was supposed to have been done for each student in their normal school settings. If school districts move quickly and strategically enough, they can get something in place and make up lost service minutes before way too many compensatory service minutes are owed to each student.

The good news is that the only things that should have to be changed, provided the goals already tackle every area of unique student learning need and are written in a measurable manner, are services and placement. The goals shouldn’t change. The learning outcomes that the IEP has been pursuing shouldn’t suddenly become inappropriate because of a forced change in placement in response to a national emergency. The quarantine has nothing to do with whether a student’s IEP goals target appropriate learning outcomes.

If you are a parent doing an IEP meeting (by phone or video conference, please!) and somebody from the school suggests eliminating a goal or putting it on hold, don’t go for it. Your child didn’t suddenly experience a reduction in the need to learn what that goal targeted. If they’re trying to get rid of it, it’s because they are struggling to come up with an inexpensive way to teach or provide therapy to it and they don’t want to have to pay what it’s going to cost to legitimately pursue it, which is not cool. It’s also totally unlawful.

It is my sincere hope that public education agencies will respond to the needs of their special education students timely enough to prevent regression and the need for compensatory services as much as possible. The faster and smarter they move on this, the less responsible for compensatory education they will be. If the education agencies go straight to each child’s IEP goals and ask, “Given the limitations with which we are currently faced, what services are going to have to be delivered either in home or in some other 1:1 instructional situation in order to still see these goals met?” they’ll cut to the chase and be as efficient as anyone can be under the circumstances.

IEP teams don’t have to start over at the beginning. They just have to go back to the point where they are trying to decide what services are necessary to meet the goals and how they can be delivered in the placement options currently available. When this conversation was last had for each student on an IEP, the placement options were more plentiful, so that conversation fit what was then the context. But, the context has now changed, so IEP teams need to return to the services and placement portion of the IEP process to address the fact that placement options are now very limited and a fair amount of creativity is going to be needed to work around the limitations that are now imposed by this quarantine.

The current situation also requires school nurses to come up with health care plans to go into each student’s IEP and tailor them on a case-by-case basis for students with unique needs that may require hands-on support for medical equipment, physical positioning, hand-over-hand instruction, and other close contact instructional methods and support services for which PPE will be critically necessary. It is important to include guidance to anyone having to implement an IEP in person as to how to conform to appropriate safety practices in the health care plan section of each special education student’s IEP.

Now is the time for strategic thinking. It’s all hands on deck for those of us who have critical thinking and problem-solving skills, and some of us are way better at things like that than others. I gladly defer to those who can understand things that are way beyond me, like sophisticated mathematical models. We need to defer to those who come up with the most effective and efficient methods of meeting public agency obligations regardless of their titles or training. We need to be working collaboratively rather than competitively. All of us who are trying to make public education work, regardless of the roles we each individually play, have to keep the timbers of the system from being rent apart, right now.

I know one of my students is, thankfully, already receiving in-home instruction from a credentialed special education teacher supported by a Board Certified Behavior Analyst (BCBA) for three hours a day, using safety protocols as per the Centers for Disease Control (CDC). However, I also know another one of my students is sitting at home having one meltdown after another while her mother pointlessly tries to access Google Classroom in the absence of any special education instructional or behavioral support services.

These students need specialist supports and services from experts with advanced degrees. Almost no parents knows how to deliver this kind of highly specialized instruction. When it comes to specialist-provided related services, like speech/language services or occupational therapy (OT), parents are even more at a loss.

The educational needs of most special education students, because of their increased risk of regression during lengthy breaks from effective instruction, are as significant to their development as is their medical health. Particularly when you are talking about students with developmental disabilities, disruptions in routines and services are likely to lead to educational losses that will take time to recoup; the longer the period of disruption, the longer the period of recoupment.

Recoupment comes at the cost of new learning. Time spent relearning lost knowledge is time not spent learning new information. Regression and recoupment always mean a student falling even more behind same-grade peers, even after lost learning is recovered. Further, developmental windows of childhood development narrow and close as time goes on. When children miss developmental milestones because they are kept in deprived environments, it stunts their developmental growth and it is very difficult to overcome the knowledge deficits later in life.

There are adults everywhere today who are maxed out at Concrete Operations, according to Piaget’s Stages of Cognitive Development, and that’s enough to get them by for the most part, but they don’t understand big picture concepts and tend to subscribe to magical thinking when it comes to things they can’t deduce from direct observation of physical objects and phenomenon.

Adults like these may be very accomplished at things that involve the manipulation of tangible items, such as using tools to make and/or repair things, or representations of tangible items, such as visual computer models. But, try to get them to explain the differences between democracy and fascism, or love and need, and they can’t do it. These are abstract concepts that require a fully functional pre-frontal cortex, which they don’t have.

And, that is the kind of thing that has me worried about all the students doing some kind of home school thing during this quarantine. We have inexpert parents, the older bunch of which were raised during a time prior to the Common Core and without the types of cognitive stimulation that come with it.

I’m middle aged and I can remember that, in my early adult years, adult literacy was still a big deal. Illiterate but employed adults bemoaned the idea of employers requiring a high school diploma for a job like carpenter, cook, truck driver, or factory worker, which were the types of jobs that large numbers of Americans were pursuing and occupying at the time. A high school drop out could make a truly comfortable living plucking chickens at the local chicken plant, back when I was a teenager and young adult, especially if working the graveyard shift. That was $20 per hour back in the late 1980s.

So, when I say that there are parents out there who are ill-equipped to home school their children right now, I’m not just whistlin’ “Dixie.” There are still a fair number of people my age or close to it who grew up surrounded by adults with a gross under-appreciation of the value of education and now have school age kids or grand-kids for whom they are responsible. They may appreciate the value of a good education, but since they never got one, they don’t have the knowledge necessary to home-school their children.

And, that doesn’t even begin to take into account all of the dysfunctional parents with actively manifesting mental health issues, which can include drug and alcohol addiction, who are now stuck at home with their poor kids and expected to teach them skills they never mastered, themselves. How many of them are actively using in front of their kids to deal with the stress of this situation? How many of them have lost income because of the current circumstances, can’t afford to re-up, and are now experiencing withdrawals while stuck at home with their kids?

You add special needs on top of an already weak family system and then put that family unit through a quarantine made necessary by a global pandemic, and something bad is bound to happen. For a lot of these families, their kids going to school every day is good for everybody involved. It gets the kids away from toxic adult behaviors and around more appropriate role models during the majority of their waking hours, while giving their parents a break that can facilitate peaceable interactions later when the whole family unit is together. For those kids from difficult situations at home who also have special needs, school-based specialist services and individualized instruction can be their lifeline to a better future and they need that lifeline now more than ever.

To the degree parents can be effective parts of an IEP implementation team under the current circumstances, parent counseling and training as related services are going to become increasingly necessary. Whether it’s done online, in person, or a hybrid delivery model of both, the parent has to be trained on how to implement those portions of the IEP for which he/she can assume responsibility during quarantine, which is an IEP team decision. 34 CFR Sec. 300.34 lists parent counseling and training as a related service that can be provided by an IEP.

Qualified personnel will have to make up the balance of the IEP services that cannot be delivered by a parent in consultation with special education and related service personnel. It is not educationally appropriate to delegate 100% of the implementation of an IEP to an inexpert parent. Specialist personnel are still required in some capacity and that has to be determined on a student-by-student basis, just as with any other aspect of an IEP.

While the IDEA does not include a contingency plan specifically for pandemics, it does have rules that provide structure as to the outcomes public agencies are expected to achieve and the mechanisms by which they can be achieved, even as they adapt to ever-changing situations. Public education agencies are just having to rely on these rules and tools to respond in a way never before anticipated. The fact that we can keep these institutions going under the current circumstances speaks to the construction of the enforceable laws, the tenacity of the American people, and the collective belief of our majority in preserving our institutions.

This is not the worst that things could be, as bad as it is for some people, right now. The majority of us will survive the virus, though those of us who survive are likely to lose people we know before it’s over. It’s up to those of us who are not willing to descend into anarchy to continue enforcing the laws that make us who we are, even under these distressing circumstances. We’re needed now more than ever. Human lives, whether they are disabled or not, are worth more than money, and we need to make sure that message remains resoundingly clear in the times ahead to come.

Texas Education Agency Due Process Guidelines During the COVID-19 Pandemic

In light of the sheltering in place and social distancing currently underway around the country, including in Texas, the Texas Education Agency (TEA) has announced new policies and procedures for special education due process and mediation in these unprecedented times. You can see TEA’s posting at https://tea.texas.gov/about-tea/government-relations-and-legal/special-education-hearings/due-process-hearings.

What we did not find on the TEA site, at least not at the time of this post, are the individual notices that accompanied the email we received announcing these policy changes. They are as follows:.

Questions regarding special education mediation or due process hearings may be addressed to SE-Legal@tea.texas.gov.  Questions regarding the special education complaints process may be addressed to SpecialEducation@tea.texas.gov.