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VIDEO: 5 Steps to Protecting Your Special Education Student’s Rights During COVID

Posted on August 9, 2021

After schools scrambled to adapt to the coronavirus pandemic in spring 2020, special education lawyer Joseph Sulpizio, senior attorney in the Cuddy Law Firm’s Philadelphia office, provided a video guide on how to protect your child’s special education rights during COVID-triggered school disruptions.
The virus landscape is different heading into the 2021-22 school year, with vaccines available but the Delta variant causing renewed crisis in many parts of the country. Parents may want to review this early pandemic advice.
Joseph identified five ways to protect your student’s rights during school shutdowns and remote learning:

1. Write down any services that your student missed.

Keep a record of academic instruction your student receives during COVID-19, and what their pre-COVID Individualized Education Program (IEP) called for. Compare what they were supposed to get to what they actually are receiving during shutdowns or remote learning. This includes keeping track of how many minutes of instruction your child receives and in what formats the instruction takes place—video lessons, phone calls, emailed worksheets, etc. Use notebooks or spreadsheets to keep the information organized.

2. Participate in whatever services are being provided.

If you later file a complaint that your child didn’t get appropriate special education services during COVID-19, but you didn’t sign up or log in to whatever services were available, you’re giving the school district an opening to argue that the problem was your lack of participation. Take any reasonable steps to participate in what the district is offering. Even if you don’t think a particular service will work in a remote format, try it first. And when it doesn’t work, write to the school via email describing what’s happening. It’s important to put it in an email so you have a written record. If you just refuse the services, that could hurt you later when you argue for resources to make up for the deficit.

3. Document your student’s unwillingness to participate.

If you can’t get your child to cooperate with online learning, document your child’s behavior. Take notes, and share what you’re seeing with the school—via email—so you have a record of you reporting the problems.

4. Participate in IEP meetings by video or phone call.

Don’t refuse to meet by Zoom, Skype, phone or other remote methods if there are school shutdowns or stay-at-home orders. If you insist on in-person meetings, you can ask for a delay to a later date. But that may not be ideal because you could encounter the school struggling with a backlog of IEP meetings and end up with an abrupt meeting wedged into their schedule. It could be better to have the meeting by video conference or phone, and get a meeting that at least takes the time to fully address your child’s need. Also be understanding if the district needs to reschedule a meeting because someone can’t attend, but ask them right away to provide a new date so the meeting doesn’t get put off too long.

5. Be careful about signing documents accepting reduced services during COVID disruptions.

You can agree to COVID-altered educational plans for your child, but make sure that anything you sign clearly states that full, pre-COVID services will return after the COVID disruption passes. Make sure the changes aren’t permanent. And be on alert for questionnaire items from the school saying you won’t seek compensatory services after school resumes normal operations. Don’t agree to that. Add your own comments to the document, if needed.

Joseph said that early in the pandemic, the U.S. Department of Education said schools shutting down completely—like in a snow day—don’t have to provide special education services if they aren’t providing any educational services at all.

But if schools offer alternative education formats, such as remote online learning, they must also offer students in special education with the “free, appropriate public education” (FAPE) required under federal law.

Guidance from the federal government also said schools must assess how much learning students in special education were missing and plan to provide compensatory services making up for it when classes resumed in person.

What was most important for parents, Joseph said, was to act in good faith.

Don’t automatically reject what the school is offering for remote learning. Inform the district in writing of anything that isn’t working for your child. Keep a record of the services your child receives, compared to the services they were supposed to receive before pandemic shutdowns. After school resumes, you child may be entitled to those compensatory services to make up for instruction lost to COVID.

You can start to address any problems you’re having gaining full access to special education services for your child, during pandemic conditions or not, by contacting the Cuddy Law Firm.

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