Student Support Update
Intervention - Section 504 - Special Education
SPECIAL REPORT: Implementation tops list of FAPE concerns during COVID-19 pandemic
IDEA hearing officers are just getting started with FAPE cases relating to the spring 2020 school closures, but a pattern is emerging already. Approximately one-third of all IDEA administrative decisions discussing the educational impact of the COVID-19 pandemic in the Special Ed Connection® database addresses districts' alleged failures to implement students' IEPs as written. If these early due process filings and state complaints are any indication, school districts across the country could soon be defending their efforts to provide special education and related services during the extended school closures.
The percentage of early administrative decisions focusing on IEP implementation is not surprising. March 2020 guidance from the Office of Special Education and Rehabilitative Services and the Office for Civil Rights suggested that some districts were unclear about their obligation to provide FAPE during the pandemic. Other districts needed time to figure out how to serve students with disabilities, some of whom needed hands-on services, while complying with social distancing protocols. Any change to the amount of a student's services or the method of delivery can give rise to an implementation claim.
What's notable about these decisions is the extent to which hearing officers and state complaint investigators are considering a district's efforts to provide FAPE. Districts that made instructional materials available but failed to provide necessary accommodations or supports were more likely to be found liable for an IDEA violation. See, e.g., In re: Student with a Disability, 77 IDELR 173 (SEA WI 2020); Norris Sch. Dist., 120 LRP 30203 (SEA CA 09/02/20); and Porter Twp. Sch. Corp., 120 LRP 29261 (SEA IN 08/31/20). However, districts that used alternative delivery methods to continue students' services were found to be in compliance with the IDEA. See, e.g., Orono Pub. Schs. Dist. 0278-01, 120 LRP 30736 (SEA MN 08/24/20); and North Montgomery Cmty. Sch. Corp., 77 IDELR 144 (SEA IN 2020).
Other claims to anticipate
Although a large percentage of pandemic-related FAPE due process claims focus on IEP implementation, hearing officers and state complaint investigators have decided other IDEA issues as well. Those issues include:
· Access to records. Common issues include the district's obligation to provide copies of education records during school closures and compliance with the IDEA's 45-day time frame for responding to requests to inspect and review records.
· Compensatory education. In addition to considering the amount of services the student needs to receive FAPE, hearing officers are addressing whether the district must provide those services in person.
· Distance learning plans. Parents have filed FAPE claims to challenge the appropriateness of distance learning plans and the district's failure to include certain services required by students' IEPs.
· Prior written notice. Complaints alleging a lack of notice tend to focus on services omitted from a distance learning plan or a district's response to a request for certain accommodations or supports during the school closures.
Child find, accommodations, and educational placements have also been the subject of several recent administrative decisions.
Governor Announces Sped Voucher Program in Texas
Governor Abbott announced last week that TEA will handle a new program called Supplemental Special Education Services (SSES) for parents of students with certain low incidence disabilities.
Eligible parents can apply for a $1,500 credit to purchase supplemental special education services such as therapies and instructional materials. The services will be offered only by TEA-approved vendors. At this point, it appears there is no ARD committee or school district involvement in this process.
Naturally, we feel that involving the ARD committee in these decisions is the most appropriate manner to determine what services are needed for a student.
The Coalition for Public Schools, of which TCASE is a member, is in the process of submitting a letter to the governor with concerns about the announcement and implementation of this program. Although only students enrolled in public school are eligible, the Coalition still sees this as a voucher-type program because it is funneling public money to private businesses.
Further, school districts are required to consider whether any compensatory or supplemental services must be offered to a student as a result of the pandemic disruptions. The CARES Act funds that the governor is using for this program could have been used for the school services to ensure that services would be in alignment with the student’s IEP.
To read more about the SSES program here.