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.
One of the issues that I haven’t seen discussed anywhere else, but am seeing first hand every day, is the impact that the shutdown has had on my students with disabilities whose parents also have disabilities. Given that so many learning disabilities, physical impairments, Autism spectrum disorders, and mental health conditions run in families, it’s not surprising to find children on IEPs whose parents also have disabilities. It would be shocking for a professional in this field to not see that phenomenon.
The shutdown negatively impacted students and their families from all walks of life. Students on IEPs were hit more hard only because they were already at a disadvantage and largely under-served before the pandemic hit. All shutdown did was magnify the pre-existing inequality.
To that end, parents with disabilities who were already getting jerked around by their local education agencies have been disadvantaged and exploited even further during school shutdowns. I’ve got two cases on my caseload, right now, that immediately come to mind. One is in California and the other is in Missouri, and in both cases I’ve had to serve as both a reasonable accommodation for the parent with disabilities as well as do my normal job of advocating for the student with disabilities.
In both cases, a bunch of goons from the respective school districts tried to railroad learning disabled parents who struggle to understand the relevant documents, saying one thing verbally, putting something else in writing, and hoping these learning disabled parents didn’t notice. The parents’ federally protected rights as per the Individuals with Disabilities Education Act (IDEA) to informed consent and meaningful parent participation in the IEP process are additionally compromised by violations of the parents’ rights under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act (ADA).
Here’s what I need everybody reading or listening to understand: The states involved here are Missouri, a red state practically overtaken by domestic terrorists bent on sedition, and California, a blue state with mostly progressive leadership. This is a non-partisan issue. There is no political party that seriously cares about people with disabilities, even though disability cuts across every swath of human existence that there is. It’s beyond dysfunctional, but that’s our profoundly sick society, for you.
So, what do we do about this? Well, on an individual basis, the steps of effective advocacy remain the same: get the truth on the record, request remedy, and file complaints if the local education agencies don’t abide. The number one protection parents with disabilities have under the ADA relevant to this issue is their right to communicate via their preferred form of communication. Reasonable accommodation isn’t limited to wheelchair ramps, and honoring a learning disabled person’s communication preferences is just as important as honoring the communication preferences of someone deaf or blind.
For parents with disabilities, it is important going in from the outset that you make clear in writing that you require reasonable accommodations from your local school district, including what your communication preferences are. It doesn’t hurt to add language like, “These accommodations under Section 504 and the ADA are necessary to insure my protected rights to informed consent and meaningful parent participation in the IEP process pursuant to the IDEA.”
If you have been keeping your need for accommodations to yourself for fear of being judged by the school district members of your child’s IEP team, something is seriously wrong. If you fear that people employed specifically to educate humans with disabilities are going to give you grief because you are a human with disabilities, either you’re insecure, working with a-holes, or both. You do yourself and your child no favors by not putting your local education agency on notice about your need for accommodations; if they treat you poorly, that’s on them for violating your rights as well as those of your child.
It’s stronger to go in asking for reasonable accommodations as your legal right given that you are there to protect your child’s right to reasonable accommodations. If you acquiesce on one, you’re acquiescing on the other. You have to believe that all people with disabilities are equal in power and voice to people without disabilities, including yourself. You are not setting a good example for your child to become a strong self-advocate in spite of disabilities when you fail to advocate for yourself.
Aside from what individual parents with disabilities do on a situation-by-situation basis on the ground, at this point, the only mechanisms available that have any chance of broadly changing anything are judicial and political. Parents need to sue over the civil rights violations that undermine their advocacy for their children so that public education agencies are held to account under every letter of the law that applies. All parents of children with disabilities need to unionize and collectively bargain for improved special education laws and access to special education resources.
In theory, parents with disabilities involved in the IEP process for their children may be able to concurrently file 504/ADA claims in federal court purely on the basis of the discrimination against themselves while filing for due process under the IDEA to assert their children’s claims. However, there’s a kicker that my colleagues who are licensed members of the bar should weigh in on, here.
With respect to informed parental consent and meaningful parent participation in the IEP process, the related civil rights claims may have to toll while due process is being pursued because a special education hearing officer has no jurisdiction with respect to 504/ADA but administrative remedies under the IDEA have to be first exhausted before related civil rights claims can be pursued. Basically, you have to do everything you can with due process before you can go on to federal court on related civil rights claims.
The reason civil rights claims often must toll pending due process is because the hearing officer in the due process case may order something to correct the special education violations that inadvertently cures the civil rights violations at the same time. This makes it unnecessary to get that same outcome from a federal court judge and, thus, a waste of judicial resources to try the same thing in two different venues. However, if the civil rights claims can stand alone on their own with no related due process claims associated with the same body of facts, it’s possible to go forward on civil rights claims while other claims are being adjudicated via due process.
Again, this is a tricky question of law and I defer to my colleagues who are licensed members of the bar to speak to the particulars of 504/ADA claims versus IDEA claims, as well as the order in which issues are tried and by whom. The point is that there is recourse, one way or another.
Parents with disabilities should not feel compromised in the IEP process. No parent should fear that a body of public servants educated, trained, and employed to support the needs of individuals with disabilities in the school setting will use that knowledge to exploit the parent’s disabilities to the detriment of the student. The very idea is reprehensible, but it happens every day.
Institutionalized biases have a lot to do with it. Even people employed to educate students with disabilities will regard a parent’s disabilities as character flaws, more often than not. It’s a learned, knee-jerk reaction that all of us have been raised with to one degree or another our entire lives. It’s why people with disabilities are often also plagued with self-loathing and related mental health disorders. Most people with disabilities aren’t born with self-loathing and mental health disorders; they are acquired from the experiences of being rejected by everyone else and seeing a world that is basically designed to exclude them from participation. Things that can be acquired can also be let go and replaced.
During distance learning, these issues became even more painfully apparent as schools shut down and children with special needs had to stay at home and participate in distance learning. Setting aside the degree of forgiveness due to actual teachers for not being given appropriate tools and support from their respective agencies to handle the situation, something cohesive should have been in place within the first few weeks, but I’ve still got school districts pulling ridiculous stunts and we’ve got partial campus re-openings going on around here, right now.
We’re now more than a year into this thing and, not only have they not gotten their acts together, they’re actively making excuses as to why the broke the law 40 million different ways before now. If they invested half the energy they’ve spent on making excuses and lying to the public into actually solving the problem, it would have been solved by now.
The politics of it all is at the heart of this issue, unfortunately. This is just as serious as domestic terrorism, because it’s actually one of many expressions of that terrorism. When parents with disabilities are terrified of the people to whom they send their children with disabilities every day, often with the threat of criminal prosecution for truancy if they don’t, they are being manipulated through fear to acquiesce on issues that, under the law, require their consent.
It is important for those of us who are working in the civil rights arena to recognize that we will find the students with disabilities we serve also among other marginalized populations that may have a stronger degree of activism already underway. For example, if a child with disabilities and African-American heritage is being jerked around, it may be more effective to bring a representative from the NAACP to an IEP meeting than a disability advocate. Likely, the best solution would to bring both.
This is an issue that child and family advocates need to address because it is vast, pervasive, and significant. When it comes to dumping the instructional responsibilities for a child with disabilities onto a parent with disabilities, the civil rights claims can easily multiply. I have had three cases this year involving parents with disabilities who were getting played by their local school districts until I said something. One case is resolved and the other two, which I mentioned at the beginning, remain active.
In every case, not only were the parents with disabilities being inappropriately burdened like all other parents during shutdown, they were not offered any reasonable accommodations to do so. In my mind, this is an enormous class-action issue that could result in entire state departments of education, which are ultimately responsible to the federal government for complying with the IDEA in exchange for federal special education dollars, getting nailed to the wall for failing to ensure local education agencies provided reasonable accommodations during shutdown to parents with disabilities who were attempting to instruct their children at home or who simply could not, resulting in a deprivation of educational benefits to their children.
I am very curious to get parent, advocate, and attorney input on this issue. If you have experienced anything like this, either as a parent or professional, and have ideas on how to lawfully resolve these issues with the least amount of trauma to the involved children and their families, we’d love to hear from you. For those employed within the system who want to do the right thing but are being prevented by others within the system, your feedback is appreciated as well.
The news is replete with evidence that far too many public servants can’t be trusted to uphold the rules of democracy. Because the IDEA is so dependent upon the application of science to the lawful implementation of special education, it tends to be those who disregard science and law who pose the biggest threat to our children with special needs.
Given how many Far Right conservatives there are employed within public education, the fact that the domestic Far Right is the greatest terrorism threat that our country faces, and that neither science nor the rule of law mean much to the Far Right, it’s not that hard to see why we need to get the Far Right out of our public school system. The Far Right is why civil rights laws are necessary in the first place. They’re not going to do the right thing because it’s the right thing to do. They don’t even understand what that means. They’re going to do whatever serves their selfish motivations.
People who follow the extremes at either end of any social spectrum, including politics, tend not to have fully functional prefrontal cortices, based on my observations. They lack the deductive reasoning skills to understand the big picture. They lack the perspective-taking skills to see things from anyone else’s point of view. They are egocentric in thought and grossly emotionally under-developed. They are prone to extreme actions and reactions based almost entirely on their own wants and needs.
In the special education setting, if you and your child’s needs don’t align with the agenda of people with this mindset, you don’t even exist to them. You’re like a person with a numbered ticket at the deli counter. They’re going to interact with you briefly and smile to your face, then forget you exist five minutes later. You’re a thing, not a person, to people like this. They don’t think of anybody as another “person.” Everybody else are just things to conveniently access when they serve a useful purpose to people who think this way. That is why holding them accountable after the fact is more effective than logical or emotional appeals made in an effort to prevent something bad from happening.
All of this is, of course, disordered thought. So, basically, what this comes down to is a bunch of mentally ill, self-serving individuals getting paid six-figure annual incomes at taxpayer expense to manifest their untreated and unaccommodated symptoms at the expense of their constituents. What we’re really looking at is the symptoms of untreated mental health disorders being manifested as public policy to the detriment of individuals who are not in denial about the fact that they have disabilities attempting to advocate for their children with disabilities.
The most apparent difference that I can see between the two sides of the issue is that the people within public education responsible for this situation don’t think there is anything wrong with themselves; they think they are the chosen ones and everyone else exists just to give them an excuse to collect a paycheck. When the special education community finally addresses the degree to which schizoaffective, personality-disordered administrators and the like are behind the egregious abuses of disability-related laws it experiences, and we use our science to heal ourselves, we’ll be able to actually use the science to heal our children and help them build productive futures for themselves.
On November 4, 2020, I interviewed attorney and author, Catherine Michael, of Connell, Michael, Kerr, LLP, a special education law practice with offices in Indiana and Texas (https://cmklawfirm.com). Catherine’s book, The Exceptional Parent’s Guide to Special Education, will become available on December 1, 2020 and can be pre-ordered at https://amzn.to/38euWaD.
The following is the transcript from the interview (transcribed using Otter):
Anne Zachry 00:00
First of all, thank you so much for being on this podcast with me, I don’t get to interview folks very often, and it’s always fun when I get to. And it’s always very informative, because I think having all of us who do this kind of work, you know, talking these things through out loud, and just speaking to what’s going on and how we think that’s going to affect the the students that we work for, and the families that depend on us, I just think it’s a really constructive use of time. So I really appreciate you being here. If you could, just introduce yourself and give us just your background, your history of how you’ve come into this line of work and what it is that you do now.
Catherine Michael 00:33
Oh, yeah, absolutely. So, my name is Catherine Michael. I’m the managing partner of a law firm called Connell Michael Kerr. And we work in a multitude of states and have attorneys licensed in in several states as well. And what I do is, and for the past 20 years, I’ve worked in education, law or representation of children. And, and a lot of that involves filing educational due process cases against schools, personal injury, tort actions against schools, and sometimes group homes, residential facilities, and also advocating for children with special needs, for instance, the legislatures in several states, and at a national level. And, you know, I got into this line of work. My background had been in hospital risk management. And I got into this, because we were seeing a lot of children who had really substantial issues, whether they had a diagnosis of cancer, and we’re now getting cranial radiation or having a tumor removed. And we saw how uncooperative schools were. And back then it was really quite shocking to me that we would find a school district who wouldn’t want to provide a child a homebound program or a school district that would claim that cancer is not a disability, and this child doesn’t need to be eligible.
Anne Zachry 01:51
Oh, my gosh!
Catherine Michael 01:52
That was really – Right! That was really fascinating to me, because as someone who had not worked in education, at that point, and was working with hospital systems, that was really shocking, because I think all of us believe that our procedures, tools are supposed to be very pro child, they are there to ensure educational services for children. And, you know, the first case I took was a child who had cancer, and was just really, really surprised how hard it was to get that young man a program. And thereafter started taking cases involving children who had learning disabilities, and really finding how substantial a need this was. And it had a snowball effect and has kept me in it to this day.
Anne Zachry 02:36
Well, yeah. And a lot of us come into this, who are professionals from these paths where we encounter these challenges. And we’re like, “Wait a minute, what?” And then we see how the system is constructed, how it’s been designed, and what the rules actually are. And so I would imagine coming from a medical scenario, I mean, in the medical realm, you bought insurance billing rules, and all those kinds of things until there’s somewhat of a similarity in that you’ve got this compliance standard that has to be met, in order for things to happen. And when you look at what those rules are in special education, and, you know, and you understand what the intent may have been. But then, and you and I spoke briefly of this before we started the interview, that enforcement is really the question here. So if you could speak about that, that would be …
Catherine Michael 03:29
Yeah, enforcement is a huge issue. And I think that because there is so little enforcement of the laws on the books, we’ve have found that basically schools have run amok. And so for parents who are listening, the main law is the Individuals with Disabilities Education Act, and that is a federal law, which means that every state has to follow it. They can’t have a state law that restricts any of the rights under a federal law. And every state in the United States has basically what we call “codified” that law into their own state laws, the only thing that they can do is add additional rights for parents. For instance, the state of Michigan actually extended how long the student can be in special ed. So it is age 22 under the federal law. Michigan made it 26. Other states change, for instance, when a parent requests an independent educational evaluation. California, basically has that if a parent request an independent educational evaluation, that the school gets a reasonable time to respond. Other states like Indiana say a school has to respond within 10 days. So there’s some of these minor changes in the law that are that are supposed to in some states like Indiana or Michigan, give those parents additional rights. But also the way these laws are designed, is that the only enforcers of them are parents. That means the parents are basically their own private attorneys general; that parents are the equivalent of the cops on the road with the radar to catch the speeding cars. Your State Department of Education is not going to be looking over your child’s IEP and saying, “Wow, your child has a lot of issues and they only have one goal,” or “They’re not receiving any direct speech services,” or “They’re not receiving any direct special educational services,” or “Your child shouldn’t be in a special education room all day long; that there’s something called the ‘least restrictive environment,’ which says we need, to the maximum extent we can, have them with their general education peers.’ So what I think a lot of parents don’t realize is, your State Department of Education isn’t doing that. Your federal Department of Education isn’t doing that. No one has that obligation to enforce these laws, other than the parent bringing a private action called an educational due process complaint. So schools have all of these laws under IDEA. And just to give, you know, for parent, I’m sure if if you’re listening to this podcast, you probably have a basic overview of it. But IDEA has requirements for what’s called a free appropriate education. And that basically encompasses that your child is going to have an IEP, that has challenging ambitious goals, in light of their circumstances, that has related services. Related services would be counseling, social work services, parent training, speech therapy, occupational therapy, physical therapy. The least restrictive environment: That if your child needs a one on one aide in order to be in a general education environment, they’re supposed to do that versus moving your child to a resource room. If your child needs a therapeutic day placement or residential placement, that’s also to be provided by the school. There are all sorts of procedural safeguards. If a school refuses your request, let’s say for a one on one aide, or a specialized program for dyslexia, they actually have to provide you written notice saying what data they’re relying upon to deny this, everything they’ve considered, and they have to provide this to you in writing. So there are all these laws on the books, okay. And regardless of where you live, when we say IDEA, it’s that federal law, this applies to you, and it applies to your child in a public school. And as you know, going back again, but the only enforcer of this law, the only enforcer who can actually call a school to tap on it is you as a parent and that mechanism, as I said a second ago, it’s what’s called an educational due process complaint. And that’s a complaint that is filed with your State Department of Education, a state appoints a hearing officer to determine if that program is in place. And you know, something we discussed before we started as well is that most parents have no idea that they have these rights. And that most of these laws are right now not being enforced. There are some states where there is less than one due process case a year. So when schools are developing these IEPs, being that there’s no real enforcement mechanism, other than in some states like the timeline, they have to have it a yearly meeting, we’re seeing really horrible consequences of that, I think across the states.
Anne Zachry 08:27
Well and then now that with school closures and shutdowns, that certainly hasn’t improved things at all. And so what are you seeing?
Catherine Michael 08:36
It hasn’t.
Anne Zachry 08:36
What are you seeing now, that’s different than before the shutdown started?
Catherine Michael 08:40
I think the biggest problem I’m seeing is a complete lack of services. And that is where school districts, for instance, that have gone entirely virtual, have students who are just not able to access the services, they may be so cognitively impaired, they’re not able to do a computer program
Anne Zachry 09:01
Right.
Catherine Michael 09:01
In some of those cases, I’m seeing schools basically just throw up their hands and say, “Well, you know, when we come up with a program, we’ll let you know.” And that’s really contrary to law. And there are a lot of things that parents need to be doing right now. That is one of the biggest problems. The other one is where parents whose children are getting, for instance, speech therapy. The school’s saying, “Sorry, we can’t provide that right now.” And in fact, they really can. I mean, virtual speech therapy has been done for years and it’s something that should be being done.
Anne Zachry 09:35
Right.
Catherine Michael 09:36
And then lastly, I mean, we’re seeing schools where kids are coming back to school, but we’ll have a school that that, you know, I think for good reason has a mask mandate, but they don’t understand that there are clearly going to be children who cannot wear masks, right?
Anne Zachry 09:52
Right.
Catherine Michael 09:52
They are too cognitively impaired or they have really significant health issues. And I’ve definitely seen a lot of those issues crop up, which is really quite shocking to me. Because some of these situations, you know, quite honestly, when we look at a child who for instance, has a tube down their throat, the fact that a school would even argue with a parent as to whether they’re going to try and put a mask on this child is shocking.
Anne Zachry 10:21
Right.
Catherine Michael 10:21
They’ll tell a parent that a child can’t come to school. So that I think has been another one of the really big issues.
Anne Zachry 10:28
Yeah. And we’ve what we’ve run into out here in California is it’s hit or miss, it depends on the school district as to whether they’re going to do the right thing or not. And but we have some school districts that are just flat out refusing to do any in-person services at all, under any circumstances, even though we have the governor’s order that came out in April that said that any student that required in-person services in order to continue to learn and to receive educational benefits, just as a matter of FAPE, that those in-person services still had to be provided and the people who would do it would be considered essential infrastructure workers. But we have districts saying that, “Oh, no, there’s something else that came out in July that says we don’t have to do that.” And it doesn’t say that at all. And so they’re just waiting until they get court ordered to actually do it before they’ll comply. They’re waiting for somebody to pull that trigger. They’re not willing to assume the risk. It’s a risk management decision. They don’t want to assume the liability of choosing to do it, and then have somebody gets sick and say, “You made me go to work, and then then I got COVID.” And then they’re going to turn around and sue the school district as the employer. And so what we’re seeing is that a lot of it has to do with human resources issues, and unionized employees and, you know, rightfully insisting on safe ways of getting things done, and satisfaction not being achieved at that level, which then impairs the system’s ability to carry out its mandate, because the workers it relies upon, there’s no agreement as to how they’re going to do it. Until they get court ordered, they’re just not gonna. And so that’s what we’re seeing out here. And it’s weird. And I’ve also got OCR complaints and state compliance complaints as well pending because the due process system is now so flooded that, you know, the attorneys I work with can’t file anything new until March. And so it’s like, Okay, well, we got to find other avenues to still somehow enforce all of this and a compliance investigation, or an OCR investigation has a 60 day timeline. So at least that’s something.
Catherine Michael 12:27
Yeah, well, and I think that is, again, part of the big problem, here. It’s just when we have schools that they know that the consequences to them are going to be really minimal, that’s why we’ll often see them wait for court orders versus getting creative. So when I say getting creative, we’re seeing two are not able to serve, for instance, cognitively impaired kids, they have problems where they are not able to get the personnel in and not keep them safe. They can actually pay for a private therapeutic day placement, they can offer a parent sort of what we would call a continuum of services and placements …
Anne Zachry 13:02
Right.
Catherine Michael 13:03
… which is one of the requirements of federal law. And they can actually say to a parent, look, we do not have the infrastructure right now, or we don’t have the ability to serve this child, here are four or five private placements that we can contract with, if that’s something you’re interested in. So and we see that happen in some places, and we don’t see it happen in others.
Anne Zachry 13:22
We’re seeing that also with non-public agencies being able to provide in-home services like behavioral services.
Catherine Michael 13:28
Yeah.
Anne Zachry 13:28
Yeah, same thing.
Catherine Michael 13:30
Yeah, I’m actually a big fan of that happening. When I see school districts that are really willing to think outside of the box to say, “Well, we have an absolute obligation to serve these kids. How do we do it?” Right? Where they’re actually looking at it more along the lines of: “This is our job, this is our role, how do we perform it, even if we don’t have the personnel right now?”
Anne Zachry 13:52
Right.
Catherine Michael 13:52
And so when I, certainly when I see school districts going above and beyond like that, and situations where, you know, you can see how difficult it is. I mean, I’m looking at those districts and saying, you know, at least they’re making these attempts, but, you know, the, the problem we see over much of the country is school districts basically saying if a parent, if, after all this is done, brings a due process, our worst case scenario is we’re just going to have to provide compensatory education. So I’m seeing some school districts, really, you know, as I said a moment ago, not provide anything.
Anne Zachry 14:29
Right.
Catherine Michael 14:29
And so, you know, if you’re a parent who’s listening to this, and you’re saying, you know, my school district may be providing part of the program, or not any of it. I mean, the thing you need to be doing right now is documenting it.
Anne Zachry 14:41
Yes!
Catherine Michael 14:42
Because you are absolutely going to have a claim for those compensatory hours that your child should have been getting. So if your IEP had your child receiving 124 minutes a week of what we would call sort of direct special educational services like we would expect to see it you’re talking about a child with a specific learning disability, who is getting some of that one on one reading intervention or math intervention, those are the minutes that are going to be ordered. If you have a situation where your child’s not receiving that, or they were in a resource room, and we’re talking about full time special ed placement, they’re not able to access a computer, what you’re going to want to do is just really document those hours that you’re missing. Email the school, your child’s school, and ask, you know, again, if your child’s not receiving anything, what options are available? You know, if they don’t have the infrastructure, are they going to offer a private therapeutic day placement or a home based placement at this point? And that’s, you know, sending it for instance, a registered behavior technician, or if your child has autism, a BCBA, or you know, another individual who’s trained in that, you know, behavior modification into the home to work on the child’s behavioral goals, social skills goals, academic goals. What is the school able to do at this point? And you’re certainly going to want to ask those questions. And you’re going to want to push because, again, it’s their absolute duty to be providing this right now. To the extent that they are unable, there are rural areas where, you know, there are no ABA centers are out there …
Anne Zachry 16:14
Right.
Catherine Michael 16:15
… no spec ial day placements, there are no private placements, quite honestly. And we have schools that are saying, you know, “We don’t have enough staff,” you know? It’s really a very, very problematic situation for families in those places. And that’s where the parent just really needs to be documenting to the best extent they can you know, what skills their child is losing how many minutes that their child isn’t receiving, what they’re doing, any costs that they are right now incurring. Like for instance, for parents who are having to go out and buy educational items, these are all things that you’re going to want to keep track of as a parent so that as things return to normal, you can sit down initially with your school at an IEP meeting and say, we need to plan for the compensatory services, number one. Number two, here are the costs that I had to privately pay that I’m asking to be reimbursed for,
Anne Zachry 17:05
Right! Well, and I don’t know how other states are doing it, but in California, one of the things that we had a Senate bill pass over the summer, that now requires all IEPs to have a contingency plan and emergency plan for his schools shut down for emergency reasons for 10 or more days. And so now, and hindsight being 2020, obviously, that should something else ever arise, like another pandemic, or whatever that would, or, you know, a natural disaster that would require a school closure for 10 or more days, that there is already a backup plan of what to do for each kid …
Catherine Michael 17:40
Yes.
Anne Zachry 17:40
… on IEP. And so I don’t know that other states have codified anything like that. But California has. And I think that’s very valuable. And the same body of law that produced that I believe, also produced a requirement that there’s going to have to be an analysis of how much compensatory education every special ed kid in California is due, because it’s assumed that everybody will have suffered in some kind of way, and that everybody will have …
Catherine Michael 18:04
Yeah.
Anne Zachry 18:04
… lost services. And so it’s, the IEP teams are now legally beholden to calculate that, once things, you know, once the shutdown is over. That …
Catherine Michael 18:12
Yeah.
Anne Zachry 18:12
… varies from community to community. And I, we now have like, I’m in Ventura County, where districts are not intending to open until January, at the soonest. And then you know, you go down into other counties, and they’ve already got campuses partially opened down in Orange County. And so and some campuses are reopening for their most severely impacted students who desperately need that in-person support. And so the families have to sign all kinds of waivers and everything, but then they can go back and they’ve got all of these empty classrooms that they can spread everybody out. Because not it’s just a small number of students. And then those kids can get that individualized support. But that is like, you know, how much of this was working on social skills? And if they’re all spread apart, can we really do that? You know, and so it’s, it’s still the challenge of how do we work on the goals. And what I’ve seen too, is some kind of distance learning program where, you know, the parents are expected to be the one-on-one aide and help their students login. And they do some kind of something on the internet, but it doesn’t have anything to do with anybody’s goals. It’s just something to do. It’s just to give them a sense of routine in the absence of, you know, an actual plan, and then they get very confused. And then eventually, the goals get worked in because enough people you know, make a fuss about it, then it starts to happen. And now you switched everything up on them again. Now, the instruction is a whole new novel experience, and you’re transitioning them again, into something new that is unfamiliar. And so it just seems to me that it’s very disruptive. And it’s disheartening to see that there’s this little coordination. I mean, as many milestones have been achieved, and as many things that have been accomplished with making some of the system work, this piece of it falling down is a real disappointment, you know? And …
Catherine Michael 19:53
Yeah!
Anne Zachry 19:53
… and it’s disheartening, but I think that parents need to know that there are people like you and me out there who understand it, and we’re trying to fight it, we’re trying to help them. And it’s not a lost cause; that there is help out there. If you could share about your practice, once again, that would be very helpful.
Catherine Michael 20:12
Yeah, so my law firm is Connell, Michael, Kerr, and I am licensed in Michigan, Indiana, and Texas. And our website is www.cmklawfirm.com, and I also have recently, and I believe it’s due out either in December or January, I’m not sure on the date. But I do know that we’re having pre-orders. That’s the Exceptional Parent’s Guide to Special Education, where I basically have, you know, put all of my advice on how parents should navigate this system in one place. Everything that I go over with parents in consultations, how the process works, I’ve put that together and created that as a book. And so that will be due out, again, it’s either in December or January, but parents can get it through Amazon, Kindle, I believe Barnes and Noble, a couple of the others. But I know that should be available shortly. And I’ll send a link for that as well. (Note: It will become available on December 1, 2020, at https://amzn.to/38euWaD.)
Anne Zachry 21:08
Very cool. Yeah, we’ll include the link with our post so that people can access that. That’s a good thing to know.
Catherine Michael 21:14
Yeah. Because I, you know, I think the thing that parents need to remember is that they actually have power. When, you know, when I use the term, private attorney general, that parents are basically acting as though, you know, that is the main message I want to impart to families is that most accountability is going to come from families standing up together and saying,”No, we are entitled to appropriate services for our children,” and doing their research and coming to unders tand the system and asking for the things they’re supposed to be getting.
Anne Zachry 21:47
Right.
Catherine Michael 21:47
And it’s only by asking for it, and schools really being held accountable that we’re going going to see the system change. And I think a lot of parents, right, and this is all of us, right? It’s difficult to challenge people that we want to like us and parents often want the teachers to like them, they want school staff to like them. And most people who go into teaching are very, very good people, but they’re not taught the education laws, they’re not …
Anne Zachry 22:11
Exactly.
Catherine Michael 22:12
… in a lot of situations, we find, you know, teachers don’t know how to design the school for an IEP, they don’t … You know, I had a teacher in a due process hearing last week, they they didn’t know that parent training, or counseling could even be part of an IEP. So it’s really important for parents to take the horse by the reins, and learn how to navigate the system and start asking these things in a way that’s diplomatic and kind. But at the same time is assertive enough that your child is going to get what they need, because quite honestly, you are your child’s only advocate in the system.
Anne Zachry 22:48
Right.
Catherine Michael 22:48
And unless you’re asking for these things, the schools simply aren’t going to provide them. And in many, many situations,
Anne Zachry 22:55
it’s just a sad reality of it. But I mean, this also goes to the fact that in a democracy, we’re of the people, for the people, and by the people, and the parents are the people, the students are the people and we shouldn’t be afraid to take ownership of that responsibility. It’s what we all agreed we wanted to live under. That’s …
Catherine Michael 23:13
Yeah.
Anne Zachry 23:13
… the model we’ve chosen. And so I think, for me, what makes me upset most about the way it’s designed, it’s not just that it forces parents into litigation, because that’s what the rules require, in order to resolve the dispute. It’s the attitude that parents get from the school district personnel when they actually exercise that right. And the “How dare you?” and “Oh, you think you’re …” you know, whatever. And all of a sudden, the parent becomes the bad guy for simply exercising a right and following the rules, because that’s the only mechanism available to them, not because they want to. Nobody wants to do that. But if they do, you know, as someone who works with families, if somebody comes to me and says, “I cannot wait to go to court,” I’m like, “Well, okay, I hope you find somebody to help you with that, because it’s not going to be me,” You know, it’s that you shouldn’t be eager to go to court. It should be the last resort. And so when parents are forced into that corner, and that’s the only option they have left, and they exercise that right, and then they catch grief for it, like somehow they’re the bad guy, I think that’s what bothers me the most. Because it’s like you …
Catherine Michael 24:18
Yeah.
Anne Zachry 24:18
… said, you know, that the parents can be made out as, “Oh, they’re just this this disgruntled person and they just aren’t happy with anything. They’re sad about being the parent of a special needs child.” I’ve heard that one a lot. “They’re having a hard time coping and they they’re angry and they need someone to take it out on, so they’re suing the school district.” No, you broke the law and you harmed their child. That’s why they’re suing you. You know, it’s frustrating.
Catherine Michael 24:46
Yeah, and, to that end, like, I want, you know, schools as well as parents to I you know, I would so love if we could even stop thinking of due process as litigation or suing or something like that, because these parents cannot get damages under IDEA claims.
Anne Zachry 25:04
Exactly.
Catherine Michael 25:05
What you can get, right? You can recover your attorneys fees. But in these cases, I mean, if we look at them in their most simplistic nature, it’s simply the parents asking their state Department of Education to appoint an independent hearing officer to make a decision as to the appropriateness of their child’s program.
Anne Zachry 25:23
Right.
Catherine Michael 25:23
A parent doesn’t need, although I certainly wouldn’t recommend it, but a parent doesn’t need an attorney. So, you know, I will often hear from schools that, you know, this is the litigious parent who filed a suit. And I’m thinking, number one, this person hasn’t filed a suit against you. Right? A suit, you know, traditionally is a claim we would file in civil or federal court.
Anne Zachry 25:46
Right.
Catherine Michael 25:47
This is an administrative action that they filed with an administrative agency. It’s not even … so, and then we hear, you know, “a litigious parent.” Parent’s not asking for money, you know. They may be asking for what we call an “in lieu of FAPE” type of agreement where they can actually get the funds to place their child in an appropriate program.
Anne Zachry 26:05
Right.
Catherine Michael 26:06
But I think that is a mindset that we really need to have get schools over and also get parents again, thinking that if you have a problem with Social Security, or you had a problem with your child’s Medicaid, you file an administrative action to get that corrected. Right? You file with, you know, your federal Social Security office, “Here, I need to get this adjudicated,” or somebody who’s disabled. We don’t think about it the same way.
Anne Zachry 26:31
No, not at all.
Catherine Michael 26:32
I think if we could … right? And so to me, that has always been fascinating as somebody who does this, when, you know, I have one that’s in a hearing right now, where the, you know, the parents, quite honestly only asking for an appropriate IEP, and then assorted related services for her child. And now, you know, when the school’s attorney is speaking to us, they’re saying, you know, this is simply a litigious parent. And I’m thinking, you know, she’s not asking for a dollar.
Anne Zachry 27:00
Right.
Catherine Michael 27:00
Just write an appropriate program. So I really want to even reframe how parents think about these things. Again, schools are basically performing a government function.
Anne Zachry 27:14
Yep.
Catherine Michael 27:14
When we ask for the enforcement of these laws, it’s an administrative action. And you’re asking, you know, someone from your state simply to make that decision. Certainly, they can be appealed to federal court. And there’s all you know, all of the things that you and I often see.
Anne Zachry 27:31
Yeah. Which Yeah, I’ve gone all the way to the Ninth Circuit on some of these things and it’s just like, “Are you kidding me?” And something that you had said before we got started, as well as that how much money school districts are sometimes willing to throw in attorneys that they would never throw at services, I mean, hundreds of thousands of dollars in legal fees to fight over a $7500 education service.
Catherine Michael 27:50
Yeah. And you know, I’ve even seen that when a parent requests an independent educational evaluation. In most states, those can go for around $3500. Some states that we’re looking at California and New York, it can be higher. So I’ve seen schools go through an entire due process, arguing that their evaluation is appropriate, where they spent triple, quadruple, what it would have cost them to provide the parents the evaluation. And when you look at that, you’re really what you’re seeing is a school district saying, “We want to make this process so hard on parents that they don’t even bother to ask.” And they talk to their friends and they’re like, “Yeah, this is what happened.” And that’s not the role of a government entity, right? We shouldn’t have government entities making it so difficult for individuals to get their, you know, their legal rights met.
Anne Zachry 28:23
Right. Right.
Catherine Michael 28:38
They don’t even want to start that process. And that’s why I think it’s really important for parents to feel empowered, and to realize that what they’re asking for is supposed to already be being provided to their child. And again, it becomes their job to enforce that. And you can do so in a diplomatic way.
Anne Zachry 28:55
Exactly.
Catherine Michael 28:56
There are a lot of you know, yeah. And there are a lot of things you can do even outside of due process. But I don’t want parents to be afraid of due process.
Anne Zachry 29:03
Right.
Catherine Michael 29:03
And, I want to reframe their thinking on that topic.
Anne Zachry 29:07
I think that’s a really healthy perspective. I wish we could reframe the thinking of the folks from the school district who come in and deliberately try to make it toxic in those instances where they do. And you know, when it isn’t always that case, you’re right. I have been in situations where we’ve had to file for due process. And it’s almost one of these things where everybody in the IEP team knows that it was coming, and nobody’s surprised by it. And they’re waiting to see what happens. And it’s almost like the administration is hoping the parent will file because then they can go to the school board and say, “Look, now will you listen to me?” And because, sometimes it’s not that the department doesn’t want to do it, it’s that their hands are tied by, you know, whoever holds the purse strings, who’s not part of the IEP process, even though the team is the one vested with the authority to make those decisions. So, the politics that are going on behind the scenes become a toxifying effect. And …
Catherine Michael 29:59
Right.
Anne Zachry 29:59
… then you Have the attorneys that these individuals will hire and certain individuals, you know, birds of a feather flock together, and you’ll find people who are like minded in their view of these things. And I know that for from what I’ve seen the socioeconomic status of the community where the school district is, can have an influence over whether they will comply or not. In a school district where they don’t have the money to throw at lawyers, they’ll go ahead and pay for the service, they’re not going to fight over it …
Catherine Michael 30:27
Yeah.
Anne Zachry 30:27
… because they can’t afford to. But you get into an affluent community, especially when you’re talking Southern California where you got these little pockets of nouveau riche and their big McMansions. And they’re feeling all special because they have money and the school district people will tell them, “Oh, well, you don’t want to go through public special education services. That’s like a welfare service. You would do much better if you pay privately for the services yourself. You’ll get much better results than what we can give you because ours is publicly funded.” And so they play that …
Catherine Michael 30:58
Yeah.
Anne Zachry 30:58
… that mind trip on these wealthy parents whose identities are all wrapped up in their their newly accomplished wealth, and they play on that and these parents are taken for a ride, because then these parents are paying out of pocket hundreds of thousands of dollars for all of these specialists who were hovering, like vultures just waiting because they know it’s coming. So you’ve got, you know, you’ve got all of these parties that are financially invested in enabling that mechanism to play out the way that it does. And then you have parents who suddenly realize after, you know, they’ve broken the bank, and they don’t have all that money anymore, because it went all to private school and residential placement costs and things and to come to find out that they could have gotten all of that from the school district. But there’s …
Catherine Michael 31:40
Yeah.
Anne Zachry 31:40
… only a two year statute of limitations and they’ve been paying out of pocket for the last 10 years. And so not until they’re bankrupted by it that they realize the error in their judgment, and then they can’t go back and fully recover. And it just there’s all of these different games being played by people who seem to be similarly motivated to not serve, while taking public dollars to hold a public service position. And I think that this is as much a taxpayer issue as it is a parent issue, because like you said, we’ve already paid for these services to be provided. Those are our tax dollars. And in those are the laws that our Representatives passed in order to provide for these children. And yet, this is what we have instead. And so I think …
Catherine Michael 32:22
Yeah.
Anne Zachry 32:22
… that one of the parent advocates that I met a few years ago said she went up to Sacramento with a group of parents and sat down with state assembly members or state Senate, I’m not sure who all she met with. It was state officials, representatives. And said, you know, “When you take into account all of the people in California who have disabilities, and their immediate family members, like their parents, or you know, a spouse, do you consider them a constituency?” And he said, “No, the number is too small.” And she said, “Well, okay, what about all the people who are employed to support all of these people with disabilities and their families and their extended families? When you add all those people in, does that become a constituency to you?” And he said, “Yes …”
Catherine Michael 33:08
Yeah.
Anne Zachry 33:08
“… at that point, now you’re talking about a significant number of people.” And so what that really communicates is all of this divisiveness that we’ve been seeing in our culture where, you know, we’ve got people being pitted against each other for different ways of thinking about things and the things that make them unique from each other. And disability is no stranger to that experience. And what we’re starting to realize is that the people who are trying to divide us are a minority. And they’re easily identified, we all have a common group of individuals who are all trying to pit us against each other and turn us into special interest groups, when really we’re just the majority. And if we all …
Catherine Michael 33:49
Yeah.
Anne Zachry 33:49
… weave ourselves together and collectively advocate for each other, then we’re a constituency. And I think that …
Catherine Michael 33:57
Yeah.
Anne Zachry 33:57
… that is where we have to start thinking about these things now that it’s not, “Oh, my disability rights versus your LGBTQ+ rights.” It’s not my “My race rights versus your gender rights.” You know, it’s not a “versus.” It’s no, everybody. Everybody has equal rights. And that’s the whole point.
Catherine Michael 34:16
Yeah.
Anne Zachry 34:16
And so I think that our dialogue needs to shift in that direction. I know that I had this conversation in an IEP meeting the other day with a team, I had to file an OCR complaint. I’m like, “Look, this pandemic is not the apocalypse, you know? Zombies are not at the door.”
Catherine Michael 34:32
Right.
Anne Zachry 34:32
“Democracy has not fallen, the rule of law still applies. And at no point did public health usurp civil rights, they are equally important. So what are you guys gonna do?” And they’re just like “Uhhh!” because they don’t know. I mean, but they understood why I filed a complaint. They weren’t mad at me. They’re probably … they’re actually they’re like waiting to see what comes of it because maybe now they’ll be given permission to do their jobs. You know?
Catherine Michael 34:56
Right.
Anne Zachry 34:56
Nobody was angry about it. It was like “Okay, well, yeah,. That logically makes sense. We’ll just have to see what happens.” And so I’m not necessarily, in my situations … and of course, I have relationships with a lot of these people, because I see the same people in IEP meetings for different kids over the span of decades. So we all know each other. So it’s not like …
Catherine Michael 35:17
Yeah.
Anne Zachry 35:17
… you know, I’m going into a novel situation, and then some stranger coming in and telling them what to do. Because that can be, you know, people can become defensive and adversarial when that happens. So I have rapport, but, you know, even still, you know, the fact that I can say something like that, and everybody’s like, “Yeah, you know what, you’re right. We still are not empowered to do what you’re asking us to do.” And so that that, to me, is very frustrating, because I know that there’s people who want to do the right thing, and they can’t; they’re not being allowed to.
Catherine Michael 35:45
Yeah.
Anne Zachry 35:46
And I think that parents need to understand that too, that, you know, not everybody’s the enemy, but you got to be paying real close attention these days. I mean, would you agree, I mean, the parents just need to be …
Catherine Michael 35:56
I would.
Anne Zachry 35:56
… very discerning about who they can trust?
Catherine Michael 35:58
Well, absolutely. I think it’s, again, it’s being discerning. And it’s also it’s being educated as to what your child needs are, what you’re asking for. And then also, you know, again, understanding that you are going to be the only one who really has your child’s true best interests at heart. That’s not to say that there aren’t, you know, within school systems there are really dedicated teachers, dedicated administrators who are doing their very, very best to ensure children are being educated appropriately. But at the end of the day, and I don’t necessarily like that expression, but it really does come down to, you are always going to know your child best. And it is going to be up to you to enforce these laws.
Anne Zachry 36:43
Right.
Catherine Michael 36:43
You know, you may have a great teacher one year and not another. And again, the school’s interest isn’t going to be the same as yours, right? Theirs is going to be on their budgeting, the union, you know, everything going on, your interest is going to be on “Is my child getting an appropriate program?”
Anne Zachry 36:51
Exactly. Right. And, I mean, in terms of checks and balances, that’s why the parents are such an important part of the team, and are afforded so many rights and the protected right to meaningful parent participation and …
Catherine Michael 37:11
Right!
Anne Zachry 37:12
… informed consent. I mean, all of those privileges and rights are there, because that’s meant to be a check and balance against the rest of the system. And so, you know, if they if the parents are being bamboozled, and they are signing documents that they don’t actually understand, then those enforceable rights are not being honored. And, you know, it’s parents have to understand that they have recourse and they need to educate themselves as to what what that is.
Catherine Michael 37:36
Right.
Anne Zachry 37:36
And ask! I mean, my favorite thing is when parents say, “Okay, well, what are my rights under this circumstance?” and put it back on the school people … … to explain what their rights are, you know? And I think that that’s a good strategy, because it is the burden of the school district to explain to parents what their rights are. They’re supposed to be able to do that. And so you know, if they’ve put you the parent on the spot, the parents should feel comfortable saying, “Well, you know, what, I need to turn this around to put you on the spot for a minute, because I don’t understand my right. And I’m not sure what I can do here.” If you’re savvy enough to know, in some states, you know, how the rules play out are different. In California, all you have to do is give 24 hour written notice, minimum, and you can audio record your child’s IEP as a parent. You can’t video record, but you can audio record, and the school district can’t say no, but they also have to record as well so that there’s a backup copy. And you know …
Catherine Michael 37:42
Yes!
Anne Zachry 38:23
… just for authenticity reasons. So different states have different rules about audio recording, but, you know, I audio record every IEP meeting. One, because I have ADHD myself, and I don’t want to miss anything. And so it’s just a … it’s more of a safety net, because I very rarely have to go back and listen for …
Catherine Michael 38:23
Yeah. Yeah.
Anne Zachry 38:38
… my own account. But just to know that I can make me less anxious during the meeting, but also because, you know … … it ends up getting introduced into evidence if we do have to go to a due process hearing. And it’s been a very powerful tool.
Catherine Michael 38:44
Well, yeah. Right. And you can be clear as to what you asked for, why you asked for it, what the school’s response was.
Anne Zachry 38:58
Exactly,
Catherine Michael 38:59
I think that can be extremely helpful.
Anne Zachry 39:01
And if, you know, when you go into an IEP meeting and you do have the, you know, you’ve legally made it okay to audio record – given written notice or whatever is required – and you’re doing it lawfully, and then you go in and say, “I don’t understand my rights under the circumstance, please explain them to me,” and then the explanation they give you is either going to be a good one, or it’s going to be a bad one. And if it’s a bad one … … you know, the backup, you know, it’s like, “Okay, well, I didn’t get the right answer, but I got proof that they don’t know what they’re talking about. And I’m not crazy.” And so it becomes evidence and I think the parents and, certainly as an advocate, when I go into the to the IEP process, I’m trying to solve the problem for real in the moment but I’m also making the record along the way in case it doesn’t get resolved …
Catherine Michael 39:24
Yeah. Right.
Anne Zachry 39:28
… and so that by the time we arrive at due process, the trail … the evidence trail is clear. If when they say no their explanations are, you know, are whatever they are. And, going back to what you had said earlier about prior written notice one of the things that I’ve noticed out here is that I would say, a good third of the time when I get a prior written notice, in response to something I’ve submitted for a family, it won’t make a lick of sense. It will say prior written notice according to 300.503, blah, blah, blah …
Catherine Michael 40:14
Right.
Anne Zachry 40:14
… and have all that legalese at the top of it, and then they … it’s like a form and they’ll populate the form with a bunch of gibberish that’s just nonsense. It doesn’t even explain why they said, “No.” There’s no real explanation. I’m like, “Okay, well go ahead and make the record that this is what you’re sending out on a PWN form, and this is what you’re going to represent as PWN,” … because substantively, it is embarrassing. And just because you put “PWN” at the top, and you cite the code that you’re supposed to be following, the fact that you didn’t is reflected the document itself. And it just, it blows my mind what people will put into writing because they think they’re so clever. And it’s like, “Okay.” And so one of the things that I think is really valuable, that’s helpful for parents to know, too, is that the regulations, it’s 34 CFR section 300.320(a)(4) mandates the application of the peer reviewed research to the design and delivery of special education. When you have a bad IEP, you can say, “I want to understand the science that underpins this IEP. What peer reviewed research did you rely on to inform …”
Catherine Michael 40:34
Yeah.
Anne Zachry 41:20
… you know, and of course, they don’t have anything. And then when I ask for something specific, and I know, I can reasonably anticipate that they’re going to balk at it, because it’s something they’ve not done before. And it’s going to require them to create something new. I will cite the science that backs up the request that I am making and say specifically, the regulations require you to apply the peer reviewed research to the degree that it’s practicable. So if you’re not going to do this, when you send your prior written notice, please explain what it is about the science that is not practicable.
Catherine Michael 41:20
Yeah. Yeah.
Anne Zachry 41:23
And then they’re, they’re stumped, because they don’t know how to reply to that. And again, it goes back to the fact that they don’t actually have access to the peer reviewed research. I’ll go ahead and …
Catherine Michael 42:02
Yeah.
Anne Zachry 42:02
… spend $70 on an article just to make my point, because I can …
Catherine Michael 42:06
Yeah.
Anne Zachry 42:06
… you know, but I shouldn’t have to do that. And that’s the problem, is that we have this paywall between our educators and the science that would tell them what to do. And what is the politics behind that? Why is there a paywall between our educators and the research that will tell them how to teach our kids right? How is that not part of the public domain? Why do teachers not have access to that? And then, especially when you have a legal mandate that requires it, you know?
Catherine Michael 42:31
Oh yeah, and …
Anne Zachry 42:32
It blows my mind.
Catherine Michael 42:34
It goes to the fact that, yeah, that because the laws are not enforced, right? We’re just not seeing, for instance, when we look at health care, right, we have, you know, standards of care, best practices, we see checklists for everything with the doctors getting weekly reports on different new procedures, medications, right? We don’t see that in education, because, again, there’s so little penalty. We’re not seeing teachers, sort of, you know, given a weekly mailer, you know, here are some of the programs that we’re seeing coming out. Here are some of the best practices for working with a specific learning disability, you know, can you update off on how you’re implementing this in your classroom? We don’t see that because, again, there’s so little importance level. Yeah, I really haven’t felt the need to do that.
Anne Zachry 43:23
Yeah, well, and I’m thinking we’re overdue for a reauthorization of the IDEA. And one of the things that I would like to see in there is beefing up of that enforcement arm because they’re supposed to be what 10 year audits or something like that? That we have some kind of audit procedure in California that every once in a while somebody pulls the short straw and ends up getting audited. And of course, every time they go through there and examine all the IEPs, it’s just a disaster, but then nothing ever gets fixed.
Catherine Michael 43:48
Right.
Anne Zachry 43:48
And so it doesn’t change anything. It’s like, Oh, they just documented that it’s a disaster and moved on to the next one. And nothing got rectified. And we need to speak to that. I mean, is we’re looking at all of these broken systems that are just cracked open and expose raw and wide for the whole world to see now that there’s no covering up that our social programs are flawed, and that we need to overhaul them. And we need to bring them kicking and screaming into the 21st century with best practices and not just best practices in teaching, but in best practices in operational standards, and efficiency, and … … and security and privacy. And I know I worked in IT for a few years in these huge enterprise class computing environments like Walmart and Sanyo, and Volkswagen and all of these big huge computing environments, where you have these global wide area networks in these supply chain automated pieces. Back in the day, I’m talking like 25-30 years ago, this technology has been around for a long time. And if you look at the degrees of efficiency, and the cost savings and the reduction in overhead that is experienced by the industries that adopt all of this ISO standards and these automated supply chain things and and the internal and the way they automate their internal business operations, that California is starting to head in that direction with respect to individualized person centered planning. That there is a pilot program that’s being developed. And I don’t know when exactly it’s going to be deployed. But I know Ventura County as part of it, where, whether you’re Department of Rehab, or you’re special ed, or you’re county mental health, or you’re welfare, or you’re food stamps, or you’re Medicaid, or whatever, it’s one individualized plan, one caseworker, and your plan calls out to all the different funding sources. So the consumer is not having to chase after the funding, the funding is following the consumer through a single individualized plan, which is only common sense. But it was only achievable by marrying all of these computer systems together, that all of these disparate agencies were working autonomously with, and making them able to talk to each other. And so now we’re getting to the point where we can stitch all of our our computing resources together to create this inter woven supply chain so that we can streamline how we deliver public services and do it more cost effectively. But then what that also means is that there are no there are no dark shadows to hide in where funds can be misappropriated. There will be such a stringent degree of accountability that the cronyism and the back scratching that has gone on will no longer be enabled. It won’t be possible. And so that also will free up a lot of resources. And that is another aspect of increasing the efficiency and the fiscal responsibility of the system and the fiscal management of it. And so there are people who financially benefit from the system being antiquated and broken right now. And they don’t want those kinds of changes coming in. Because there goes all of their opportunities to exploit. We’re starting to see that public service is going through this transformation that private industry went through when this happened decades ago, as these technologies come in. And as the public pushes for a greater accountability. And as we repair and we overhaul our systems, we’re going to be using the most modern tools we have. And so I think that we can be encouraged that the future does hold a lot of potential for a lot of corrective action, and a lot of prevention of things like this happening again in the future. But we are not there yet. And I think it takes … it’s going to take all of us pushing for those reforms. Because as much as each parent needs to advocate for their child on a child by child basis, and not be afraid of the due process mechanisms, if that’s what it takes, you know, but not think that it’s like, you know, the panacea, like it’s going solve every problem, we also need to be pushing collectively as a community of people for reforms that will fix the system in a way where these are no longer the problems we have to deal with. And that we have to repair the broken system, not only on a kid by kid basis, but we also have to make it better than it was in the first place. And so that the next time catastrophe comes, we’re better prepared to roll with it. I mean, sadly enough, this was long overdue, where the system needed to be confronted on its failures. But I think that parents can take hope that we’re part of history right now we’re part of fixing it, we’re part of making this better for our kids with special needs, because all of its going to have to be reformed, we can’t just tape it back together and go back to the way it was. So I think that …
Catherine Michael 44:23
Yeah. Right.
Anne Zachry 44:54
… you know, there’s, there’s a lot of encouragement in what’s going on here, there’s a lot of opportunity, and we don’t need to be so terrified of the changes that are coming. And we need to really embrace them, because it’s our opportunity to make it better, I think. And it’s going to take people like you and me going in there and one kid at a time, you know, saying, “No, this is … these are the rules, and this is how they apply to this one child. And this is …” ” … the individualized program, and and the individual person matters. You know, it’s like every vote matters, every child matters. And whether that child has a disability or not, should not be a defining criteria of whether that individual matters or not, it shouldn’t even be a question.
Catherine Michael 48:39
Right! Yeah.
Anne Zachry 48:55
And so I think that what we’re doing is a very powerful thing. This is a very prescient area of civil rights law right now. And, you know, I think that, you know, regardless of how things play out with what other people do, what people like you and I are doing, we’re on the right side of history with this, you know? We’re enforcing civil rights. We’re …
Catherine Michael 49:13
Yeah.
Anne Zachry 49:13
… we’re enforcing democracy. It’s we are of the people, for the people by the people doing the work to make sure the people are protected. And I think that families need to understand that they’re not alone, that there are folks like that, like us out there. And we’re not that rare, you know, and the fact that you’re licensed in multiple states goes to the fact that you recognize the degree to which there’s not enough representation in some places, and that you’re making it …
Catherine Michael 49:36
Yeah.
Anne Zachry 49:36
… happen anyway. And so that’s really powerful. I think the parents need to … and I know that there are other attorneys who are licensed in multiple states as well. One of the attorneys I work with here in California is also licensed in Alaska. And let me tell you, going out into the middle of Alaska in the middle of nowhere … … and enforcing special ad law is not an easy thing to do. You’re coming in on a like a bush plane and landing in, you know, somebody field, you know, and going to a one room …
Catherine Michael 49:53
Yeah! Right.
Anne Zachry 50:04
… school house to say,” Okay, this kid needs speech and language. How are you gonna make it happen?” and they still got to do it. And so, you know …
Catherine Michael 50:09
Yeah.
Anne Zachry 50:09
… parents need to understand that even under the most bizarre and difficult circumstances it can be made to happen. There’s always a way.
Catherine Michael 50:17
Right.
Anne Zachry 50:17
You know, and that it’s not a hopeless situation. So I think that talking about this with you has been very enlightening and very encouraging. And I think that you’ve given us a lot of really good information. I do want to remind everybody that I’m going to include a link to your book with all of our, you know, the stuff below on the … because what we’ll do is we we do the podcast, but we also do a corresponding text only post …
Catherine Michael 50:39
Great!
Anne Zachry 50:40
That way, all the links for everything are embedded in the transcript …
Catherine Michael 50:44
Yeah.
Anne Zachry 50:44
… so we’ll have all of that and then …
Catherine Michael 50:47
Oh, that would be fantastic!
Anne Zachry 50:49
Yeah, and that way folks know how to get ahold of you. And this has been a really good discussion, I really appreciate you doing this with me.
Catherine Michael 50:56
You know, you’ve done a great job, as well, at trying to keep parents aware of their rights and helping them feel empowered. And I think that’s the biggest thing that they need to know is that they have a lot of power in their hands. They just need to know that there are lots of us on their side trying to help them along the way.
Anne Zachry 51:13
Right. And it means the world to us to be able to do it. It’s such an honor to be able to be part of making somebody’s life something that you know that they’re they’re happy and they’re fulfilled and they’re not living in misery …
Catherine Michael 51:26
Yes!
Anne Zachry 51:27
… or in crisis, you know, that that we can help people turn those kinds of corners with the kind of work that we do. I mean, it’s an honorable thing that we do and I’m proud of what we do. So thank you, and thank you for doing this and for sharing your information with us and hopefully we’ll get to do something like this with you again soon.
Catherine Michael 51:44
Yeah, I would love it. And thank you again, so much and for all that you do.
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.
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.
I know that everyone in special education is scrambling to try and make things work during these unprecedented times, but a lot of parents and advocates are struggling to find the language necessary to move things in the right direction and keep entire IEP teams from coming apart at the seams. Our kids who require expert behavioral interventions appear to be losing the most ground.
I want to speak to the families and advocates working with students who have behavioral needs by sharing the language of a communication that I recently had to submit on behalf of one of our families. It’s altered, of course, to protect the identity of the student, but I think a lot of parents and advocates may be able to recycle this language to fit their own situations.
Because so many families are in this same boat without an oar, we all need to share resources with each other so that we can be effective IEP team members. It shouldn’t be on us to keep school district people from spinning out, but humans are humans regardless of who employs them and, particularly if you’re a parent dealing with this on behalf of your kid, it in the best interests of your child to be the anchor that keeps the rest of the IEP team from drifting off course.
Just to put things into perspective, this student is in a Special Day Class (SDC) with embedded mental health and behavioral supports, including a Positive Behavioral Intervention Plan (PBIP) in his IEP that identifies his target behaviors as: Refusing to follow staff directions by either not responding, putting his head down, making statements such as “this is stupid,” “why do I have to do this?” or engaging in a different activity. Not surprisingly, this is what he is now doing at home during his school closure instead of participating in the online instruction.
Below is a copy of the email exchange that includes the language you can hopefully repurpose if you are having to argue similar points on behalf of your own children or clients. The first bit is an email that the parent and I received from the student’s special education teacher/case manager. The second bit is the reply I sent, which has now been forwarded to the district’s main office and we’re awaiting Prior Written Notice (PWN).
For more information about PWN, please see the ad-free early release of our informative Quick Fix video on Patreon by clicking here. This video will be released on YouTube for free, but with ads, in a couple of weeks and run for 30 days on YouTube before retiring to our Quick Fix Video Archive on Patreon, but for the $2.99 monthly pledge to our Quick Fix Video Archive on Patreon, you have immediate and indefinite ad-free access to that information plus all of our other Quick Fix Videos.
Because we’ve already published content on PWN, I’m not going to belabor it, here. I’m just going to get right into these emails and the language I hope at least some of you are able to repurpose and tweak to your own situations.
So, here is the email that I and the parent received:
Good morning,
I hope ALL is well and you guys are staying safe and well.
I was hoping you could help me with [Student’s] participation in our weekly Google Meets. He declined the meeting again for tomorrow
I really need to speak with him at least once a week.
Thank you VERY much for your help.
Be Well, [Case Manager]
Now, here is what I wrote in response:
[Case Manager],
We would appreciate the District’s help with this, as well. Behavior modification is supposed to be embedded in [Student’s] specialized instruction as part of his placement, but that component is not being implemented in the home and no one who lives there is specifically trained, credentialed, or certified in the necessary expert disciplines. The District is responsible for FAPE, even now. The fact that [Student] is not receiving the behavioral interventions necessary to afford him equal access to education as that given to his peers without disabilities is directly reflected by his refusal behaviors in the absence of his social/emotional and behavioral supports from his SDC.
The parent is not in any position to implement an expert level of positive behavioral interventions to facilitate [Student’s] participation on her own. She is relying on the public agency funded by the taxpayers to deliver these interventions under a federal mandate to provide him with a FAPE, that being the District, to come up with these solutions. The parent requests an offer of appropriate behavioral interventions as part of a prospective offer of FAPE that addresses these immediate concerns or an offer of compensatory services that will be provided to remediate this behavioral and academic regression once school starts back in the Fall and the campuses are re-opened.
We understand that these are difficult times, but regardless of the difficulties, [Student] still has a legal right to a FAPE and he isn’t getting it. You asking his mother for help to facilitate his compliance with online learning given his unique circumstances inclines us to worry that the District doesn’t know what to do and is grasping at straws. Any IEP team member that actually understands the complexity of [Student’s] needs would already know that [Student] requires supports beyond what an average lay person would know to provide.
While [Student’s] mother absolutely wants to be part of the solution, she cannot be expected to deliver any kind of home instruction on par with what [Student] was previously receiving in the SDC, which was a step down in restrictiveness from his previous placement, and in which he had been participating for only a few months before the campuses all shut down. There is an overtly apparent need for an increased level of support to [Student] in the immediate present to avert significant behavioral and academic regression during the shut-down.
The lack of an appropriate response from the District right now will create a significant compensatory education claim that [Student’s] family will have to pursue in order to make him as whole as possible. We’re not looking for a lawsuit, but if that is the only procedural mechanism the family has left to protect [Student], I will refer them to a qualified attorney. It is the District’s burden to offer and render a FAPE. We remain ready to collaborate with the rest of the IEP team to come up with an appropriate solution, here, and avoid the need to involve attorneys. We would much rather sort this out than have to litigate. We want to see [Student] appropriately served as quickly as possible.
[Student’s] family will participate in IEP implementation during the shut-down to the degree they are able, with the full understanding that they do not have the training, experience, or professional expertise needed to competently support [Student] behaviorally and academically at home on their own. If his mother tells you that something that needs to be done is something they cannot do, they will expect the District to propose viable solutions to each such task.
[Student] continues to require the expert services from which he was previously benefitting in the SDC and the effects of the absence of those expert services is apparent to all of us. We understand that these difficult times call for out-of-the-box thinking. So long as there is a viable plan for how to deal with this situation in place, whether it’s through the immediate increase and/or modification of how current IEP services are provided, a plan for compensatory services upon the campus reopening, or a hybrid combination of these two options, the family can trust that everything will come out okay in the end, but we can’t leave things so open-ended. That lack of predictability is part of what is causing [Student] to experience increased school-related anxiety and avoidance behaviors.
The District has a legal obligation to make a firm offer of FAPE based on [Student’s] present levels of performance in the immediate moment, as well as plan ahead for the next 12 months via the IEP process. We’re not asking for anything other than what the regulations already promise and we’re willing to be creative about how we achieve that as an IEP team given the unique circumstances. We await the District’s PWN in response to the request made herein.
Kindest regards, Anne M. Zachry, M.A. Ed. Psych.
So, there you have it. What I see in all of this is a case manager who hasn’t been given the tools and authority to do what needs to be done. I’m not frustrated with the case manager. I feel bad for him because he’s being expected to somehow pull this off without the support of his employer.
I wish I had the PWN to include, here, because I think it would be equally informative. That may become a future post topic. In the meantime, if you think you can recycle this language to create your own request letter to address similar issues with your own children or clients, please feel free. It isn’t the work product of an attorney and I’m not putting this out there as formal legal advice. It’s just a tool that might be useful to some people, but if it helps even one family, it’s worth sharing.
It’s now official: There will be no waivers of the Individuals with Disabilities Education Act (IDEA) during any time of sheltering-in-place and resultant school closures. Thanks to the efforts of many people, most notably the Council of Parent Advocates and Attorneys (COPAA), a national non-profit professional and volunteer organization of advocates and attorneys, working with the United States Department of Education, (USDOE), Secretary Betsy De Vos determined that no part of the IDEA should be waived at this time.
This is important because it’s no secret that most students, just in general, are going to regress in their learning because of the sudden school closures, putting them behind relative to the grade-level standards. Special education students are even more vulnerable to regression, but only special education students have a legal right to assert demands for compensatory education to make up for regression.
This suddenly creates inequity in favor of the special education students with respect to compensatory education, when is an unexpected turnabout. It’s usually the other way around that the general education students have advantages over the special education students. What was originally meant to level the playing field for kids with special needs has now become an unfair advantage over the general education students with no enforceable right to compensatory education. That’s something that needs to be addressed and rectified.
The degree to which a court may reduce the amount of compensatory education due to a special education student in light of the need for sheltering in place remains to be seen. In my lay opinion, there is an obvious need for some leniency. None of this was within any public education agency’s control and its commendable how so many educators stepped up their game during this crisis and continue to give us their best.
There is no way I could possibly diminish from that. It moves me in my heart and gives me faith that we can all somehow pull it together for all of our students, regardless of how each of them learns, if we all just collectively put forth the effort.
There is also the matter of the “snapshot rule.” In special education litigation, it is commonly known among attorneys and paralegals that an IEP cannot be judged with the benefit of hindsight. It has to be judged according to what was known or should have been known during the time at issue. This requires the trier of fact to look at the period at issue as a “snapshot” of what was known or should have been known during that time.
Given the unprecedented unique nature of the sudden school closures, and the pre-existing lack of a contingency plan in the event of something like it, what was known or should have been known by public school officials will require an unprecedented degree of scrutiny. This is because unforgivable errors are being, and will continue to be, hidden among the forgivable ones, and a few bad apples are already seeking to exploit the situation to get away with things for which they would otherwise normally be more likely to get caught.
So, how the law will be applied to the facts in the months and years to come ahead is something only time will tell. Given how conservative our Supreme Court has become, there is still cause for concern as to how the law will be enforced. The innovations that are happening around the country in response to campus closures are inspiring and shaping our understanding of what is realistically practicable.
This is important because the federal regulations require the public schools to deliver special education according to the peer-reviewed science to the degree that it is practicable to do so. Those who are innovating in public education, right now, are establishing the education community’s professional standards with respect to practicability in many regards.
In the effort to determine what was reasonable, given what was known or should have been known in light of the evidence, the innovations being reported around the country by clever educators should have shown up in the research of any educator searching the internet for solutions. This goes to what should have been known.
I am the last person to advocate for litigation unless there is just no other way to resolve the problem. I’m thinking about these things from a preventative standpoint, considering the consequences of what will happen if IEP teams don’t work together to figure things out, now. I am trying to think ahead and consider what can be done to prevent worst-case scenarios.
My motivation is envisioning what the worst-case scenarios would look like. That prompts me to consider what would have to go wrong to arrive at those outcomes, then backwards-chain the process to basically reverse engineer it and come up with preventative strategies that will hopefully steer things in a better direction. So, I don’t want to be all doom and gloom, here.
I am happy to celebrate the champions in all of this, but we still have a lot of work to do. Everything we do right now to prevent regression will be heartache we spare everyone in the near future when school starts back up, again, in the Fall. I want to encourage everyone impacted by school closures to do everything they can to prevent educational regression in their students.
The generational Cohort Effect of this pandemic will be something that affects our species for generations to come. How history remembers our responses to these sudden changes in our world depends on our collective decisions in the present.
We’re going to have children who have lived in trauma for one reason or another throughout this period who will be re-entering our school system in need of supports that they would have not otherwise needed. Our kids already in the special education system are going to have more demanding needs upon their return. The more wisdom we can exercise today, the less regret we will have tomorrow.
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.
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.
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.
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.
Avoiding the spread of disease is
obviously the most important consideration, these days, but life
hasn’t ground to a halt; it’s just changed. Everyone is doing what
they can, right now, to curtail the spread of disease so that we can
all live our lives in peace, which doesn’t mean stopping the living
of lives while we ride this out.
The whole point of the measures we’re
all collectively taking as a planet right now is to preserve life,
liberty, and the pursuit of happiness. However, with all of these
sudden changes, there is a lot up in the air, right now, with respect
to our students with disabilities who require services during
extended breaks so as not to regress in their learning.
Even more concerning are our students
with special needs that affect their behaviors who are cooped up at
home with their parents, who are likely on the verge, already,
without any behavioral support services. Those parents are at an
increased risk of developing Post-Traumatic Stress Disorder (PTSD)
from this whole shelter in place situation.
There are funny memes going around right now about parents trying to home-school their general education children and learning to appreciate their general education teachers, but nobody is making a meme about the mom of an autistic young woman who enjoys regular outings into the community as part of her special education program and is melting down on a regular basis, now, because she can’t leave the house, go to school, hang out with friends, or visit her grandmother in a nursing home. These are the families that are already slipping into crisis while all the rest of us are riding this out and complaining about inconveniences.
For our students with developmental
disabilities who require ongoing services in order to make reasonable
strides towards a Free and Appropriate Public Education (FAPE),
disruptions in services mean developmental stagnation and regression.
That means the current school closures are particularly impactful.
Staying at home is important. If you
can stay at home, you should. But, as millions of Americans figure
out that they can actually still do their jobs, or at least a
significant portion of their jobs, from home, and continue to work
remotely, our society is finding a way to adapt on the fly to this
situation in ways heretofore not possible because of our technology.
As awesome as that is for many private and public entities that are actively figuring this out, one area in which it has evidently not yet been figured out is special education services, or at least a triage solution for our kiddos who will regress, lose significant ground, and miss critical windows of developmental opportunity in the absence of ongoing special education services. Once again, our kids with the most demanding special needs are the last ones to get consideration by stakeholders in this situation.
I’ve been doing this long enough to
know how the system tends to respond to certain things. There are
predictable patterns in the behaviors of public education agency
personnel in response to certain types of situational factors.
Sometimes, when the people in charge
don’t know what to do, you just have to give them suggestions about
what they could do to get them jump-started. It’s something
similar to “Bystander
Effect.”
In situations in which the Bystander
Effect, occurs, if there are lots of people around when something
horrible happens, everybody expects someone else to step up with a
solution, so no one does anything. When there isn’t anyone else to
respond or just a few people, individuals are more likely to respond
in the moment to a crisis.
Here, it appears that everyone is
frozen in place waiting for someone else to do something when it
comes to meeting the needs of our students with special needs during
this current crisis. Rather than waiting for someone to step up and
do something, I’m choosing to do what science says we should do when
the Bystander Effect has gripped the crowd and everyone seems frozen
in place – impose structure.
Imposing structure to overcome something like this isn’t about telling people what to do so much as to signal their brains that the time of waiting for someone else to do something is over and they need to act, as well. Right now. Proposing a solution in a situation like this isn’t about cramming a particular agenda down anyone’s throat; it’s about snapping people out of it so they stop looking at the car crash by the side of the road as they slowly drive by and actually stop their car to get out and help.
We can’t ignore the needs of our
students who are at risk of regression and loss of windows of
developmental opportunity to learn because of factors beyond their
control. These students are the least able to do anything about the
deprivations they are experiencing at the moment. They are at our
mercy and we can’t afford to be bouncing off of each other like a
bunch of hysterical ninnies in panic because we don’t know what to do
to help them. We do know what to do. Each child in this situation
needs his/her respective village to get its act together and work in
a coordinated fashion.
So, in the interest of imposing some structure onto the conversation and planning that now needs to happen, here’s what I am proposing for our students who may need or who already receive special education, so as to prevent a denial of FAPE:
Pending Referrals &
Assessments
Child
Find [34
CFR Sec. 300.111] – This one is going to be difficult because
most public schools are terrible at child find, in general, and
most parents don’t even know about it.
Teachers identifying the kids
who may need to be referred for special education assessment on
the basis of suspected disability will be even more difficult
under the current circumstances, depending on how school officials
are providing instruction, if at all, during this time of
sheltering in place.
Parents may have increased cause
for suspecting disabilities when they attempt to assist their
children with their school work at home and discover their kids
have challenges in processing certain types of information, but
they aren’t necessarily expert enough to recognize those
challenges as evidence of suspected disability. Further, emotional
trauma can cause a child to become eligible for special education
under the Emotional Disturbance (ED) category. Parents may find it
necessary to refer their children for special education evaluation
if they perceive challenges with mastering certain types of
concepts in their children while attempting to assist them at
home with instruction and/or if their children experience
emotional trauma that interferes with their access to education
now or upon returning to school once it is safe to do so, again.
Pending Referrals – None of the
timelines applicable to referrals for special education assessments
plans should be disrupted by the current state of affairs. The only
thing that needs to happen in response to any referral is the
provision of an assessment plan, pursuant to 34
CFR Sec. 300.9 and 300.300.
This is a document-driven administrative process. This
has no in-person requirements that
would otherwise delay processing. Given that so many
people in administrative positions are able to still do their jobs
if given the proper tools, there is no physical barrier to
carrying out the duties of this step of the process and, therefore,
there should be no delay in the applicable timelines just
because of the current shelter in place situation.
If a referral was made in
writing prior to a student’s school shutting down, an assessment
plan should still be provided to the parents within the mandated
timeline. Erring by one to five business days may be
understandably forgivable given the circumstances and may result
in a procedural violation that nonetheless results in harmless
error, so parents shouldn’t be threatening lawsuits over something
like this.
If a referral is submitted in
writing via a manner that is accessible by school personnel, such
as via email or through a web portal, during this period of
sheltering in place, the local education agency should still act
on the referral within the applicable mandated timeline. As a
purely document-driven administrative process, this isn’t going to
put human beings into physical contact with each other in way that
holds up the timeline for the provision of an assessment plan.
Parents who want to make such referrals can use
our free form letter generator on our site.
Pending Assessments – If a
referral for assessment has already been made, an assessment plan
has already been signed by a parent, and now the assessment
timeline is ticking down, some public education agencies may
declare that the timeline is disrupted by the break from
instruction due to everyone staying home and sheltering in place.
However, that’s not entirely true. For example, the assessment
timelines are disrupted under California law for regularly
scheduled school breaks and vacations of five or more days, but
this shelter in place business isn’t regularly scheduled or a
vacation.
Understand that assessment,
whether it’s an initial evaluation or a re-evaluation, is
considered a related service pursuant to 34
CFR Sec. 300.34. Both 34
CFR Sec. 300.103 and 300.323(c)
make clear that a related service cannot
be subjected to any unnecessary delays as
a matter of legal procedure, as this would delay the
provision of services according to an IEP, and, thus, deny a FAPE.
Unnecessary delays include
sitting around and freaking out instead of acting. If public
education agency officials claim to be working on a solution and
weeks go by, they’re not working on a solution; they’re freaking
out and wasting everyone’s time. The Texas
Education Agency (TEA) has already set up mechanisms to keep
its complaint and due process systems going; evidently it
understands that each State is ultimately responsible for making
sure its students get educated, even if their local education
agencies waffle under the pressure. If State education agencies
can keep their systems going by having their personnel work from
home on these administrative duties, the schools they regulate
have no excuse for not doing the same, and I suspect State
officials will see it that way, too.
Necessary delays would include
taking measures in order to otherwise comply with the regulations
under the current unique circumstances. If it takes a week or two
to put the necessary resources into place, that’s forgivable. Any
longer than that without additional extenuating circumstances and
all you’ve got is poor leadership within the agency creating
unnecessary, and potentially actionable, delays.
Most special education
assessments require at least some standardized testing that is
administered in a 1:1 testing situation. An assessor can arrange
to conduct standardized assessments in a 1:1 testing location at
a school site via prior arrangement without risking an entire
classroom or exposing an assessor to either an entire classroom
of potentially infected students or household of potentially
infected family members of the student being assessed.
Acceptable reasons for delays
of any component of assessment in these instances can include
illness within the student’s family or that of the assessor that
puts them at risk of exposing each other to COVID-19 and a
shortage of other assessors to otherwise conduct the assessments
or other unique circumstances that might otherwise make a
substitute assessor educationally inappropriate, but the delay
should not be greater than what the situation actually requires
based on what is known at the time.
Public education agencies may
need to enlist the support of assessors in the local community to
stay on top of assessments as much as possible, and States may
need to waive non-public agency licensing requirements under the
current circumstances just to make sure everybody who needs
ongoing speech/language services, for example, actually gets it.
Classroom observations are
going to be the obvious problem for many assessments. Even if an
assessor comes to observe a student who is sheltering in place at
home, that will not be entirely representative of how that same
student functions in a classroom under normal circumstances. It
may make more sense to wait until the student returns to school,
but the assessment timeline may be ticking down while the child
re-acclimates to the school setting, which could include
emotional factors that were not present before but which could
continue and are, therefore, relevant to the assessment process.
Consultations with teachers and parents regarding in-class
performance before and after quarantine will become imperative to
supply accurate information for the assessment report. Regardless
of how a student functioned in the classroom before quarantine,
going forward post-quarantine is going to look and feel different
for everybody after all of this. Post-quarantine classroom
observation data is probably going to be more useful than
pre-quarantine classroom observation data.
In an effort to achieve
compliance to the degree possible, but with the understanding
that some unavoidable delays in the assessment process can
legitimately occur because of the current situation, I am
strongly recommending to parents and public education officials
that short-term individualized response-to-crisis assessment
schedules be developed using available technologies to arrive at
a plan for each student who is pending assessment so that parents
know what to expect by when, school personnel know how to
allocate assessment resources, and the process can be kept moving
along in a relatively timely manner so that, by the time students
return to school, if they need an IEP, the IEP team can have an
appropriate one in place for them upon their return. Otherwise,
the team can finalize the assessment process once the student
returns to school so that IEP team decisions can then be made as
intended.
It may be necessary for parents
to negotiate timeline extensions with their local education
agencies as part of an individualized response-to-crisis
assessment schedule, but I am strongly advising parents against
agreeing to any such extensions without also including something
in writing that describes exactly what is being delayed that
necessitates such an extension. For example, if all of the
standardized testing can be conducted prior to a student
returning to school, but the IEP team agrees that a classroom
observation shouldn’t happen until two weeks after the student
returns, then the team can agree to keep the assessment process
open until the observations can be done, shortly after which the
report can be finalized and the IEP team can convene to discuss
the results. It may be appropriate for some students in
situations like these to complete the evaluation report during
this period of quarantine based on what is available so that an
appropriate IEP offer is made to the student as soon as possible,
with the understanding that classroom observation data will be
collected once the student has settled back in and may be used to
amend the IEP if it reveals something not already otherwise
identified by all the other assessment data on record. So long as
parents and schools document their arrangements to get through
pending assessments during this situation and the parents give
informed consent to any such alternative arrangements, parents
will not be inclined to file lawsuits, nor will they have the
evidence necessary to argue against delays to which they have,
knowingly and with full understanding, consented. Taking these
steps will reduce a lot of anxiety about loose ends and what
comes next for everybody involved.
Pending IEP meetings – This
stands to be one of the biggest procedural challenges simply because
of all the IEP meetings that were already on calendar and subject to
mandatory timelines at the time that everyone started sheltering in
place, but it is still nonetheless one of the easiest situations to
solve. 34
CFR Sec. 300.322(c) and Sec.
300.328 require that local education agencies facilitate
meaningful parent participation in the IEP meeting process, even if
that means using alternative means of participating other than
attending meetings in person, such as telephone and video
conferencing. While some delay as education agencies get their
people set up with the technologies necessary to work this way from
home might be within reason, this isn’t something that should cause
an IEP meeting scheduled for two weeks from now from not being held at
its originally scheduled time without IEP team member agreement. It
doesn’t take that much technology to do a conference call and email
the paperwork to meeting participants. The law already provides for
accommodating the fact that parents and educators can’t always meet
in person to conduct IEP meetings, and those laws remain in force,
right now.
IEP implementation – This is the
grand-daddy of all special education issues facing families of
students with special needs, right now. And, it’s a hotbed for
lawsuits if local education agencies don’t respond appropriately to
the situation.
Online learning options – These
options are being proposed for general education students and will
work for many special education students, as well, at least in some
areas of learning.
Where it will usually not
work is with students who
have:
Vision
loss or severe visual disabilities that prevent them from
accessing what is on the screen (for students with these
challenges who are also receiving speech/language services via a
virtual model, it might still work so long as the therapist can
see their mouths when they speak, depending on the nature of the
therapy)
The
forms it can take include:
Video
conferencing with teachers and/or therapists
Using
online learning games and apps
Conducting
research
Watching
educational videos
Direct
in-home instruction – It may be necessary for teachers to provide
home/hospital instruction to students at serious risk of regression
on a 1:1 basis in their homes. The law already provides for this
option, as well. If it is medically inadvisable for a child on an
IEP to go to school, home/hospital is an appropriate placement
option under normal circumstances. However, it’s probably fair to
say that a judge would not find the current times normal and that
every special education student cannot be reasonably provided with
in-home 1:1 instruction. This is going to be the area in which
education agencies are most likely to get themselves into trouble.
If there is any way for teaching staff to use the everyday
preventative actions recommended by the CDC to provide 1:1
instruction to those students most at risk of regression, it should
be done. Small group instruction of no more than 8 students is
still achievable, even if done for fewer hours of the day than
normal. One teacher could instruct two or three different groups of
no more than 8 students for a couple of hours each day in rotation
at a school site and manage to stave off regression and actually
continue progress towards FAPE. Individual and small group
therapies could also be provided while special education students
are on campus, rotating students out so that there are never more
than ten people in one place at a time.
Transportation
& Other Related Services – Some related services may become
unnecessary during alternative teaching arrangements. For example,
a student may not need a 1:1 behavior aide to receive 1:1 in-home
instruction, but would totally need the aide at school while trying
to participate among all the other students. Transportation may not
be needed for students who are being served at home but would be
needed for those who need to travel to a school site for any direct
instruction and/or therapies that cannot be provided any other way.
If alternative arrangements are made to serve special education
students at risk of significantly regressing while sheltering in
place, unusual but temporary transportation services may become
necessary in order to implement such an alternative plan. Local
education agencies cannot place the burden on parents to transport
their children with special needs to school for alternative
services during this time, particularly if parents have no way of
transporting them. The whole point of special education
transportation as a related service is to overcome that very
obstacle. If special arrangements have to be made to prevent a
student with an IEP from regressing during these current times,
those arrangements will have to, by necessity, include an offer of
transportation services if the parents cannot otherwise transport
the student. Whether or not such related services are necessary
really comes down to the individual needs of the child, as always.
It’s not like somebody bombed the bus lot; the vehicles are there
and the drivers still need their jobs, so, as long as everyone
follows proper sanitation and social distancing protocols,
transportation services can be provided.
This
is by no means a comprehensive plan. That’s more than one advocate
sitting at home on lock-down can develop. It will take State agencies
working with their local education agencies to come up with a
comprehensive plan. At this point, I have to believe that people are
scrambling behind the scenes all over the place to come up with a
plan, but the public is still waiting to hear what it is. The
families I represent are sitting at home wondering what is going to
happen over the next few months. All the information about the
schools going around is general in nature and none of it is specific
to their children with special education needs.
To the
extent that what I’ve shared can impose some structure on the dialog
that needs to be happening right now between parents and special
educators, my contribution, here, is food for thought. It’s not my
intent, here, to tell anybody what to do. My intent is to break the
frozen stance of this quasi-Bystander Effect and stop waiting for
someone else to say or do something.
In a
real Bystander Effect situation, if you’re in a crowd and someone
suddenly falls to the ground or otherwise experience harm that
requires intervention, most people will freeze and look around to see
if anybody else is going to do something. In those moments, people
who understand what is really happening have to snap out of it and do
something.
The
guidance that psychologists are given if we find ourselves in such a
situation is to point at the person right in front of us and say,
“You! Call 911!” then approach the person in trouble with
appropriate caution and, if they are conscious, tell them help is on
the way. There’s something magically triggering about issue a command
like that because, unless the person you just commanded to make the
call has no phone, the call will be made. Suddenly, instead of frozen
with uncertainty, that person has a job to do. There’s an action
he/she can take to make things move in the right direction.
Initially,
until someone barks a command, everybody is either a deer in
headlights or otherwise assumes someone else will take care of it and
don’t think they have a role to play. There’s something about barking
that initial command that gets everybody working together in unison
and it usually doesn’t take more than that. Humans just sometimes
need an environmental cue before we know whether, when, and how to
act.
So, that’s basically what I’m doing. Me barking “Call 911!” to someone standing on the other side of a fallen human body isn’t me being bossy. The suggestions I’ve made in this post isn’t me being bossy, either. This is my effort snap all the stakeholders and decision makers out of it so they aren’t standing in a virtual crowd waiting for someone else to say or do something. It’s now been said, public education system. So act.
