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.
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.
