How to Advocate for Special Education Students During COVID-19

June 23, 2020

An Interview with Special Education Attorney Tim Adams

The COVID-19 pandemic made the spring semester challenging for all families but especially for families with children with autism and other developmental disorders. Parents of these children not only had to become substitute special education teachers, but they also filled the roles of speech therapists, occupational therapists, physical therapists and adaptive physical education teachers. If implementing these different positions wasn’t challenging enough, these special needs parents have additional legal worries that parents of general education children do not have. Many school districts failed to implement a program comparable to what students were receiving prior to the COVID closures.

To address these legal concerns and to assist parents to navigate their child’s special education program during the ongoing coronavirus crisis, SafeMinds reached out to Timothy A. Adams, a special education attorney from Southern California with 19 years of experience. Mr. Adams generously granted us a telephone interview. Below are highlights of this discussion.

First things first, thank you for making time for this interview. It is greatly appreciated. Let’s get straight to SafeMinds’ questions. Has your office received more calls since schools closed due to COVID-19 and moved to distance learning? If so, what is the parents biggest concern?

Yes, my office has received many more calls than usual. The number-one issue parents are contacting us about is the implementation of their child’s IEP. In short, many students weren’t receiving services at all for weeks after the school closures and most students were receiving a fraction of the educational program provided for in their Individualized Education Program (IEP).

Do parents have the right to ask that their child’s IEP be implemented even during COVID-19 school closures? And are schools obligated to follow the IDEA and provide FAPE?

The short answer is yes, IEPs should be implemented, FAPE should be provided, and the IDEA must still be followed. Here’s the reason why: when Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act, last March, it required the U.S. Secretary of Education, Betsy DeVos to write a report with information regarding any flexibility or waivers under the IDEA that may be required during the COVID-19 pandemic. Many school districts thought the federal government would give them a pass or a waiver for educating special education students to the standards of the IDEA during the pandemic.

However, on April 27, 2020, Secretary DeVos issued her Report, making it clear that school districts are required to continue providing students FAPE in the least restrictive environment. The report did not request waiver authority for any of the core tenets of the IDEA. In other words, a special education student’s rights under federal law have not changed despite the COVID-19 school closures.

Since the end of April, we have had clear direction from Secretary DeVos that the IDEA must still be followed which means IDEA timelines are not waived either. So, parents still have a right to request an IEP and have it held within 30 calendar days during the regular school year. IEP meetings still must be held annually. Assessments required by signed assessment plan must be completed within 60 days. Triennial assessments and IEPs must be completed every three years. And if a child changes public schools/districts, an IEP must be held within 30 days of the transfer to discuss IEP services in the new public school/district.

Given Secretary DeVos’ report, do you think many schools are operating out of compliance per the IDEA right now?

Yes, non-compliance is happening all over the country due to COVID. In all likelihood, the courts will be filled with special education lawsuits for the next five to seven years. When you consider the appeals that are bound to happen, these cases may go on for more than a decade. I wouldn’t be surprised if an IDEA claim ends up in the Supreme Court.

Another complaint my office is receiving from parents is that they had no direction on implementing their child’s program from school districts once the school closures occurred. These parents were not unreasonable. They understood it would take a few weeks to create a modified program for their child. But as time went on and some of these students were not receiving school district support, some parents began to see their child regress, that’s when we started to get calls.

What is your office doing for parents that are concerned about their child’s program during COVID school closures?

In many cases, we know that school districts could have done better for their special education students as they were learning from home. COVID work arounds occurred in many different settings. For instance, daycare centers were open for essential worker’s children. Private health insurance figured out ways to deliver to certain therapies remotely. But many special education students were not receiving adequate services.

For some of these cases, we will be aiming to get the student placed in a private school. We have found that many private placements have stayed open during the pandemic. They had adapted programs with COVID safety guidelines within one to two weeks of school closures. These private schools were nimble and had market force incentives to service their students with a reasonable time period. Public schools did not have these same incentives and could have contracted with outside providers to service their special needs students, but this didn’t happen.

Does your practice represent only California families?

Yes. If parents live in California, they can set up a free consultation with my office.

What can parents outside of California do if they believe their child’s program was and maybe still is not currently being followed correctly due to COVID?

The first thing I tell parents to do is to assess the damage done to their child by using our Distance Learning Tracker. It is critical to document regression and this tool will help parents record their child’s performance. I also suggest that parents take notes on the services and programs their child is receiving or has received since the COVID shutdown. Parents should keep tabs on what their school district is proposing this fall for their child. I can’t stress this enough, this is a period of time where parents should be proactive and a self-starter. If the school district’s plan for the fall isn’t satisfactory and if parents don’t think it will work for their child, parents should be thinking about private school placements. It won’t be an easy process to receive a private placement but in the face of regression, it could be necessary for their child.

Parents outside of California can check out the Council of Parent Attorneys and Advocates (COPAA). COPAA is an amazing resource and has a national special education attorney directory where parents can find attorneys like me in their state. The Administration of Community Living has information on State Protection and Advocacy Systems where parents can find out more about their child’s rights.

Thank you, Tim for this conversation, it was very enlightening!

My pleasure.

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