Recently, PDE’s Bureau of Special Education (BSE) issued guidance which states, “LEAs should work to ensure that a student receiving special education services is continuing to be provided with FAPE, as appropriate and reasonable for each student’s circumstances. Educational and related services and supports may need to be adjusted accordingly.”
Services to be provided to students identified as eligible under the IDEA and Section 504 continue to be applicable during the time that schools are closed by the Governor in response to the COVID-19 pandemic, including the due process provisions of the statutes that offer parents an opportunity to request due process hearings.
The IDEA and Section 504 are federal civil rights statutes that provide for extensive supports and services for students eligible under the statutes as well as extensive due process protections that can be accessed by parents on behalf of their children.
During this period of closure, we have advised clients that students be provided with supports and services as closely approximating those in their IEPs or Service Agreements as possible and as appropriate to “each student’s circumstances.” Further, we have recommended that schools use the BSE language above in providing services and not, during closure, the language of the IDEA. For example, it is recommended that schools engage in “data collection” and not “progress monitoring;” that they provide written notice to the parents of the services to be provided by letter, but not by NOREP.
Under the IDEA, schools can be held to the FAPE standard of meaningful progress. However, at this time, there are too many variables in a “child’s circumstances” for that to be an appropriately accurate standard. Under current circumstances, we cannot control the educational environment. Therefore, schools may collect data but should not engage in progress monitoring.
The NOREP offers parents an opportunity to disagree and request a due process hearing. As schools are providing prior notice to parents of services and supports during this unusual period, they are offering what is “reasonable” under each child’s “circumstances.” It is advised that the NOREP, which puts parents in a position to disagree and require other services – and to request a due process hearing – is contra-indicated at this time.
Services to be provided to eligible students at this time include new instruction. Thus, students are to be provided with the services indicated on their IEPs or Service Agreements that support instruction. Such services include, for example, speech and language services, one-to-one and individualized instruction, occupational therapy and physical therapy and counseling.
It is anticipated that upon schools’ re-opening, parent attorneys will be taking advantage of the schools’ closure to request hearings claiming denial of FAPE.
While we have as yet no blueprint for how those claims will be addressed by hearing officers, it is our opinion that our best defense will be to be able to demonstrate good faith efforts. We believe that good faith efforts will be demonstrated with an extensive array of supports derived from and as closely as possible replicating the students’ IEPs and Service Agreements, and how they are offered. We believe that parents will be less likely to seek representation if they feel that they and their student have been provided with instruction and supports that indicate an understanding of their child and his or her needs, and that they and their child have been provided with an opportunity for communication with the child’s providers.
We believe that the schools that are offering virtual education by a child’s own teacher and providers, with opportunities for both the student and the parents to communicate directly with both in order to support the student and address parents’ issues can be shown to demonstrate good faith. We believe that most schools of our experience are offering, for example, virtual instruction by a child’s teacher in the morning with outreach by the teacher each afternoon to check in with the child, in addition to “office hours” when the teacher is available by telephone.
Virtual instruction and phone check-ins are also a model that we believe can support a good faith defense for the provision of, for example, speech and language services, counseling services, occupational and physical therapy services.
The more closely a child is able to interact directly and person to person the less likely it will be for the parent to seek representation.
Bottom Line for Schools
Both the IDEA and Section 504 provide for financial consequences as well as the payment of attorneys’ fees that can be substantial. In the event that a school cannot demonstrate good faith, it is anticipated that the attorneys who represent parents are going to file actively in order to challenge the services that were provided.
Therefore, the above recommendations are best-practice during school closure, and we believe they are a method for reducing the school’s liability in the avalanche of due process requests that we believe will be filed.
If you have a question, please contact your legal counsel or one of the special education attorneys at KingSpry.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. This article is meant to be informational and does not constitute legal advice.