By Marion M. Walsh, Esq., Littman Krooks LLP

As we now approach a full year of either virtual or hybrid learning, many parents and students are even more exhausted and overwhelmed than ever. As the future is still uncertain, many parents still have questions and concerns on their child’s progress and access to services. Here are some common questions and answers and resources.

Does recent CDC Guidance change any requirements for New York school districts and students?

The Center for Disease Control (CDC) released Guidance on February 12, 2021, on school reopening. The CDC provides some helpful research-based information, and, for example, notes that, in-person learning for elementary schools is likely to have less risk of in-school transmission than for middle schools and high schools. CDC Guidance will not override state rules and guidance already in place, at this time. The New York State Education Department (NYSED) provided Guidance in July 2020 which required each NYS school district to have a specific and detailed reopening plan by August 2020 and set very detailed guidance and requirements.

My child cannot access virtual learning.  Can I compel my school district to teach my child in person?

Parents may request that your school district provide full time in-person learning for their child.  However, this will be subject to the school district’s Reopening Plan and with Reopening Guidance from NYSED, as well as New York State Department of Health Guidance. The NYSED Guidance strongly encourages school districts to give priority to students with the most significant disabilities to receive in-person instruction but does not require it at this time.

However, there is at least one federal court decision L.V. v. New York City Dep’t of Educ., No. 19-CV-05451, 2020 WL 4043529 (S.D.N.Y. July 8, 2020), required a school district to provide  in-person ABA and other services, under safety precautions, and additionally recommended an order to conduct an independent assistive technology evaluation to assess what would be needed to deliver services remotely. The report and recommendations were adopted by the court.  2020 WL 4040958 (S.D.N.Y. July 17, 2020) (adopting report and recommendations);

Can I ask for a distance or virtual learning plan with accommodations?

Yes.  The U.S. Department of Education Office of Special Education and Related Services (OSEP) and NYSED both contemplate the school districts must offer virtual instruction. While most school districts have offered virtual or hybrid learning, few have developed individualized plans for each child.   OSEP has stated that “distance learning plans” may be appropriate and thus the Guidance included a presumption that contemplated a plan for each student.   Specifically, guidance from the USDOE states that “IEP teams may, but are not required to, include distance learning plans in a child’s IEP that could be triggered and implemented during a selective closure due to a COVID-19 outbreak. Such contingent provisions may include the provision of special education and related services at an alternate location or the provision of online or virtual instruction, instructional telephone calls, and other curriculum-based instructional activities, and may identify which special education and related services, if any, could be provided at the child’s home.” OSEP March 2020 Guidance  (Q. A-5).  Thus, it is wholly appropriate to ask your school district at your child’s next IEP meeting for a Virtual Learning Plan as part of the Student’s IEP, which will include needed accommodations and modifications and you may request, for example, an assistive technology evaluation.

My child has regressed this year; may I seek make up services?

Yes.  Both OSEP and NYSED understand that, during the national emergency, schools could not provide all services in the same manner they are typically provided. While some schools might choose to safely, and in accordance with state law, provide certain IEP services to some students in-person, it may be unfeasible or unsafe for districts to provide during current emergency school closures, to provide hands-on physical therapy, occupational therapy, or tactile sign language educational services.

Thus,  compensatory services may be appropriate. OSEP has noted:  “Where, due to the global pandemic and resulting closures of schools, there has been an inevitable delay in providing services – or even making decisions about how to provide services – IEP teams  must make an individualized determination whether and to what extent compensatory services may be needed when schools resume normal operations.” OSEP March 2020 Guidance, Q, A-2.

May I still file a hearing for due process and claim the district has denied my child a free appropriate public education during the pandemic?

Yes.  In the OSEP September 2020 Guidance, OSEP reminds school districts that, no matter what primary instructional   delivery approach is chosen, school districts remain responsible for ensuring that a free appropriate public education (FAPE) is provided to all children with disabilities. If State and local decisions require schools to limit or not provide in-person instruction due to health and safety concerns,  IEP Teams are not relieved of their obligation to provide FAPE to each child with a disability under IDEA.  Thus, if parents believe a district has denied a student a FAPE and are unable to work out an arrangement for make-up or compensatory services with their IEP team, they may file for due process for such relief as compensatory services or other relief.  It is a good idea to consult with an experienced special education attorney about this option.

Learn more about special education advocacy and the special education process. The dedicated team of special needs advocates at Littman Krooks, LLP, has a comprehensive understanding of the educational and transitional support requirements pertaining to students with special needs. They use this knowledge to ensure that every student gets the education and support they need and deserve. Littman Krooks has been helping New York families for over 30 years. Contact the knowledgeable attorneys at Littman Krooks at 914-684-2100.

Sources

U.S. Department of Education Office of Special Education and Related Services (OSEP), Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak,  (OSEP Mar. 12, 2020). https://sites.ed.gov/idea/idea-files/q-and-a-providing-services-to-children-with-disabilities-during-the-coronavirus-disease-2019-outbreak/

Supplemental Fact Sheet: Addressing the Risk of COVID-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities, (OSERS/OCR March 21, 2020).  https://www2.ed.gov/about/offices/list/ocr/frontpage/faq/rr/policyguidance/Supple%20Fact%20Sheet%203.21.20%20FINAL.pdf

COVID-19 Questions & Answers: Implementation of IDEA Part B Provision of Services,   (OSEP Sept. 28, 2020) https://sites.ed.gov/idea/files/qa-provision-of-services-idea-part-b-09-28-2020.pdf

CDC February 2021 Guidance, https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/index.html

Reopening Schools: Recover, Rebuild and Renew the Spirit of Our Schools, NYSED 2020  http://www.nysed.gov/reopening-schools