Mar 25, 2020
Today we are discussing Coronavirus and how the pandemic effects your child's program and what you can do to preserve your rights during this uncertain time. As you all know by now, the school closures are not about preventing Covid-19 but rather slowing down the spread so that our healthcare system can manage it. My understanding is that our local hospital is already at capacity! It is likely this will be the new normal for a while so we will do our best to give you updates and tips for working collaboratively with your school to find solutions while protecting your rights at the same time. These are challenging times and uncharted waters and we are all doing our best, including the school districts. While they can not be excused from their obligations to serve all students, they do need the opportunity to formulate a plan in accordance with daily changing guidance coming from many sources. So, what’s next? Great question. Below, we answer some questions and offer some tips for getting through. Please also check the SEEK of CT website (https://seekct.com/) for updates. SEEK has posted the letter it sent to the Commissioner of Education, signed by most of us in the community, as well as updates on school/community closures. Hopefully, the following will be helpful: First and foremost, DON’T SIGN ANYTHING before your attorney reviews it! Some schools have been requesting families sign waivers in order to video conference for their services/supports. While many of these waivers may be appropriate, parents of children with disabilities may unwittingly relinquish their rights when signing these waivers. In an abundance of caution, we recommend asking a special education attorney to review any such waiver before signing it. If you don’t have a special education attorney, call one. At least in CT, most special ed attorneys are working tirelessly to get schools and the State to meet their obligations to children with disabilities during this crisis time and would be happy to consult with you (check COPAA.org for an attorney near you). It may also be that schools want to amend your child’s existing IEP to reflect any modifications to service delivery necessary for a virtual learning experience. Again, please have this reviewed by an attorney prior to signing ANYTHING as you do not want your child’s IEP changed after in-school services resume and you don’t want to have to fight for services you previously had in place. It needs to be clear that any change in services due to the limited ability of schools to provide virtual services for children with disabilities is temporary. You may also disagree with services but still let the school implement them. If you do not agree with the temporary services your school is offering, you may express your disagreement and let them implement it so that your child does not go without any instruction during this time. Yet again, however, if you find yourself in this position, we strongly recommend consulting with an attorney. DOCUMENT, DOCUMENT, DOCUMENT! Now is a great opportunity for you to document all the skills your child does or does not demonstrate. Are they presenting at home with skills they do not demonstrate at school? Has the school deemed goals & objectives mastered but you see no evidence of mastery in your current interactions with your child? As you are helping your children through this world of virtual classrooms, keep a journal of your child's strengths, weaknesses, etc so that when we do get back to the table, you have a good recount of everything. As your school supports your child with virtual services, it will be on an individual basis whether or not these services are in alignment with your child’s IEP so keep records of all virtual sessions including related services such as counseling, OT, tutoring, etc. NOTHING IS SET IN STONE There is still a great deal of uncertainty about the details and things are changing fast. You may recall some schools or businesses swearing they wouldn’t close who are now closed indefinitely. This is an unpredictable time. While we are all hoping our children are back in their regular programs soon, there is a strong chance most school buildings will be closed for the rest of the school year. Take everything with a grain of salt. THERE ARE NO WAIVERS FOR FAPE - but stay alert! The law requires that students with disabilities receive a free appropriate public education (FAPE) - this is for students with IEPS and 504 Plans. No waivers of that requirement have been issued yet. There are, however, some Congressmen trying to change that so please keep on top of proposed legislation and reach out to all of your reps encouraging them to vote against any such waivers. COPAA is updating its action alert as needed. SEEK of CT is also offering updated information on its website. While the obligation to provide a FAPE lapses when there is no school, such as on a snow day, the obligation remains if education is being provided to others, even through distance learning. This means that as long as regular education students are receiving an education, children with special educational needs are entitled to one as well. That being said, we don’t yet know what this will look like or how it will be implemented so it is important for us to remain cooperative and flexible while also vigilant. Please remember that your child has rights and there are many of us out there fighting for them, working with school districts and the State to help figure this all out. Unfortunately, due to social distancing, many activities like prom and graduation may likely be impacted. So long as they are happening for students without disabilities, however, they must include students with disabilities. IS DISTANCE LEARNING A CHANGE IN PLACEMENT FOR MY CHILD? Yes. If this new plan extends over more than 10 days, it is a change in placement as educating a child through distance learning is clearly a departure from direct services in school. For most students with disabilities, this means a PPT needs to be held to address the change in placement. For some, however, changes can be addressed through an amendment. Changing your child’s IEP in any manner, however, can result in permanent changes and make it harder for you to obtain compensatory education services later. This is why we strongly recommend speaking to an attorney to review any language so that you know your rights are protected moving forward. Your child’s IEP can outline contingency plans such as, “Should school close for the COVID-19 pandemic, Jane’s distance learning plan is attached.” This helps identify that the parents are working cooperatively with their school but not in agreement with the program under typical circumstances. Agreement to compensatory education can also be included in the IEP such as, “The school agrees to pay for X number of hours of OT through the family’s private OT provider” or “The school is offering X ESY placement as compensatory education for the effect of COVID-19 on the current school year.” Many of these types of agreements may have a seperate CONFIDENTIAL SETTLEMENT AGREEMENT with them. Again, consult with an attorney before signing anything! WHAT HAPPENS TO MY CHILD'S OUT-OF-DISTRICT PROGRAM? If your child is placed out-of-district through a settlement agreement or their IEP, the terms of that agreement/IEP remain in force. If the placement is operating, the district has to continue to support it. If the agreement/IEP provides for transportation, the district has to continue to supply transportation. If your child is receiving distance learning from their private placement, then tuition should still be covered as per the terms of your agreement/IEP. If you have a settlement agreement, however, and if that agreement has some minimum attendance requirement in it and the placement closes, we may well face a fight to get the full level of reimbursement from the district. Definitely consult with your attorney. If your child is placed out-of-district through an IEP and the placement is closed and they are NOT providing distance learning OR the distance learning put in place is not appropriate for your child, then your school district is still responsible for implementing their IEP and you will likely need a PPT to determine what is next. If your child attends a private school through agreement/IEP, please note that the private school does not have the same obligation to provide 180 school days (which has currently been waived for public schools as well). If your child is attending private school by agreement, the private school has no responsibility to implement the IEP or offer compensatory education. That being said, many private schools may offer ESY or additional services to address the needs of their student population. DO SCHOOLS STILL NEED TO HOLD PPTs WHILE SCHOOL BUILDINGS ARE CLOSED? Yes. And no. If school is closed for spring break or a snow day, school’s do not have to hold PPTs. This however, is not spring break or a snow day. Once we get past the 10 missed days of school, we get into new territory. But there is no waiver of FAPE so PPTs still need to be held. A number of schools have stepped up to holding video or telephonic PPTs during this time. You can be sure it will take some time to smooth out all the technical challenges that go along with virtual/remote PPTs but it is a start! There is a valid argument that PPTs may not be best to be held right now as parents are overwhelmed and many participants are also teachers who are trying to deal with their own kids at home. While schools are closed for this pandemic the FAPE requirement continues and the procedural requirements of the law continue, including the need for annual review PPT meetings. Parents can waive objections to a late annual review PPT, but school districts trying to stay in compliance with the State may not agree to postpone it. If it is a scheduling issue, parents can agree with their school to not change anything in the IEP until the team can meet again, thus allowing the PPT to be held by it’s required date and the parents can still fully participate at another time that better suits their availability. Remember that PPTs have always been required over the summer if needed, and this summer will likely have many! Issues regarding appropriate personnel attending PPTs will have to be resolved and possibly subject to a waiver in certain, yet unidentified circumstances. SHOULD I PARTICIPATE IN VIRTUAL MEETINGS? PPT meetings, mediations, and due process hearings will continue during the period of closure; they will be conducted either through telephone conference calls or through video streaming services. Without the moderating impact of direct human contact, these meetings are likely to be more formal and more confrontational than in-person meetings. Please be aware of this fact: do not let the format ruin your relationship with your school. At the same time, do not let your silence be mistaken for assent. WHAT IS COMPENSATORY EDUCAITON AND HOW DOES IT APPLY TO MY CHILD? Compensatory education is not just meant to replace missed services (i.e. school is closed for 3 months so my child missed 12 OT sessions so the school needs to provide 12 OT sessions). Compensatory education is meant to bring the child up to where they would have been had they received the services. So, while 12 sessions may have worked when provided on time, given the regression/lack of learning that occurred during those 3 months, the student now needs 30 sessions to catch them back up to where they would have been had they received the services when they were supposed to. It is important to note that compensatory education does not need to take the same form as was originally written in the IEP. For example, a student may require a 1:1 para for behavior under typical circumstances but the compensatory education to bring the student back to where they would have been may not require a 1:1 para. If you have an agreement with a public school to pay for any private services outside of school hours (i.e. reading tutor, speech therapy, etc.) speak to an attorney about how to properly notify the school that you intend to continue with these services (in person or virtually depending on the availability of the service provider) and will continue to expect the district to pay for these services. As I said at the beginning, things are changing and uncertain. This may be a time for patience. It might be good to work with your school over the next week or two to see what can be developed for your child before moving to confrontation. We are ready to advocate for you when it becomes necessary, but first we need a new normal to be established. Please do not hesitate to reach out to us with any questions or concerns you have. We are dedicated to helping you get the services you need for your child!