Parents should be aware dispute resolution procedures under the IDEA, as well as its Federal and State implementing regulations, remain in effect. There is no suspension or waiver of parental due process rights. In other words, the courts are still open even though judges, hearing officers, and other personnel may be working from home.

COVID-19 CANNOT QUARANTINE SPECIAL EDUCATION RIGHTS

BY S. PAUL PRIOR, ESQ.

Amy breaths a deep sigh of relief as Daniel's iPad finally connects and the video comes to life. But wait. Where's the sound? Amy can see her son's teacher and therapist but cannot hear them. After three more frustrating minutes, Amy finally figures out the settings which will allow the sound to come through. By now, Daniel is completely disinterested in the iPad and is standing next to the couch engaging in self stimulatory behavior. 

Until today, Amy never heard of a Zoom meeting. She used Citrix at work a few times, but the controls are different. Amy's daughter is accessing her distance learning through yet another platform and she has been experiencing her own connection and set up problems. Meanwhile, Amy and her husband are trying to work from home and both have important virtual meetings to attend later this morning. The stress on the family's Wi-Fi router is only exceeded by the stress Amy feels as she tries to redirect Daniel back to the iPad so he can attempt to receive his distance learning as well as his related services like speech, occupational, and behavioral therapies.

After much effort, Amy manages to get Daniel seated in front of his iPad where his teacher greets him with a bright smile and an enthusiastic "good morning!" Amy prompts her son to respond in kind, but the 13-year-old boy with autism and limited language skills it utterly disinterested. His routine is completely uprooted. To Daniel, home is a place to relax, engage in his favorite activities, and where the demands placed upon him at school are nowhere to be seen.

Daniel starts to stand up but Amy places her hands on Daniel's shoulders and gently tries to push him back down into his seat. At 13 Daniel is already larger and physically stronger than Amy. In an instant Daniel screams, flails his arms, strikes his mother in the face, shoves her against the wall, kicks over the chair and runs away.

After a few long moments Amy picks up the chair and stares at the iPad. As tears pool in the lower rim of her eyes, she apologizes to the teachers, shakes her head and explains Daniel is a good boy and he doesn't really mean it. She says it's just too hard for him to understand. The bright-eyed upbeat educators look back at her from the other side of the screen and in somber tones say, "we will try again tomorrow." Amy nods, shuts off the iPad and stares out the window. It is only Day 3 of the stay-at-home order and Amy sees her son's skills fading and his behaviors increasing. As she dials into her work meeting, she can only hope things will get back to "normal" sooner than projected. This is an all-too-common story during these uncommon times. Both parents and educators are frustrated and unsure of what to do. Likewise, both are completely inexperienced at handling these issues or educating students under these historic conditions. School administrators and education officials are equally inexperienced and overwhelmed by the magnitude of the situation. Federal and State law obligates State and Local Educational Agencies to provide students with disabilities a free and appropriate public education in accordance with the student's Individual Education Program (IEP). As a practical matter however, how can this happen during a time of social distancing and stay-at-home orders?

The United States Department of Education has issued some guidance which makes it clear school districts and educations are not relieved of their obligations under the Federal Individuals with Disabilities Education Act (IDEA). However, the guidance does encourage flexibility and cooperation between educators and parents. To that end, it is generally advisable for parents to be patient, cooperative, flexible and understanding during these extraordinary times. Despite this general advice however, parents must always remember they are empowered by the Congress of the United States to protect the educational services and advance the educational needs of their children. To that end, parents should continue to document when their child's needs are not being addressed, even if through no "fault" of the district and be prepared to seek legal remedies where appropriate. With this in mind, it is important to remember a few fundamentals:

Districts must continue to meet and develop IEPs within 30 days of the child's eligibility determination and at least annually thereafter. However, IEP meetings can be conducted by alternate means such as video conference or telephone. It is also important for parents to remember they can request an IEP meeting at any time and the district must hold the meeting within 20 days of a parental request for meeting. If a parent has a particular concern about their child's ability to engage in distance learning or teletherapy, then parents may wish to request an IEP meeting. The request must be in writing, such as an email. A word of caution however: keep in mind educators are extremely busy and overwhelmed right now, and such a request should be reserved for the most challenging of circumstances. In the alternative, parents will absolutely want to document challenges and difficulties with their child's learning experience. Parents may wish to send regular emails to the district's child study team memorializing circumstances such as missed distance learning and therapy sessions, inability of their child to participate, lack of progress, regression or loss of previously mastered skills, increases in behavior, or ineffectiveness in the method of instruction, just to name a few. An email every few days which outlines these and other issues will go a long way if parents decide to pursue legal remedies once this public health crisis has come to an end.

Depending on a variety of factors, districts may be legally required to provide students with "compensatory education" services. Compensatory education is a legal concept which requires a district to provide additional, or make up educational and related services in order to "compensate" the student for time or education progress which is lost. Some compensatory education claims are more clear-cut than others. For instance, if a student's IEP requires a district to provide four hours of individualized speech therapy per week, but the student only receives two hours a month during school closure, it can be rather easy to determine how many hours of compensatory services are required. On the other hand, if a student is not benefiting at all from virtual and distance learning formats and regression sets in, the district may be obligated to provide additional weeks, months or years of educational entitlement. These types of cases can be more difficult to prove, which is why parents should provide regular and detailed communication regarding their concerns.

Another common challenge parents will face during school closures will be how to handle reevaluations. Remember, a reevaluation of a child with a disability must occur every three years unless the parents and the school district agree to waive it. While it may be okay to waive evaluations under certain circumstances, evaluations are often critically important in the development of a student's IEP. It is important for educators and parents to make educational and placement decisions with current data rather than an outdated understanding of the child's educational needs. Parents and educators can always agree to delay such reevaluations. However, if a parent is going to agree to such delay, it is recommended that it be done in writing, documenting the reasons why the delay is occurring and include an agreed-upon, reasonable time frame to complete the evaluations once stay at home orders are lifted.

Parents should be aware, under Federal law, a district can conduct an evaluation through a review of existing data, without a meeting and without parental consent, "where appropriate." Under this approach, districts can remain in technical compliance with IDEA mandates. However, under such an approach, parents and educators will likely disagree about whether the school's approach was appropriate. Under such circumstances, parents are well advised to file a complaint for Due Process pursuant to their State or Local Education Agencies dispute resolution procedures. Parents will want to preserve their rights and challenge, such evaluations, particularly if parents believe the conclusion and recommendation reached are detrimental to their child. Lastly, parents should be aware dispute resolution procedures under the IDEA, as well as its Federal and State implementing regulations, remain in effect. There is no suspension or waiver of parental due process rights. In other words, the courts are still open even though judges, hearing officers, and other personnel may be working from home. If circumstances warrant it, parents should not hesitate to seek legal remedies. While federally-mandated time frames to resolve special education cases have not been extended under the current public health emergency, as a practical matter, these time- frames will likely be extended in practice. Nevertheless, it will be important for parents to get their foot in the door whenever necessary. While parents should jealously guard their child's educational services, Due Process litigation is always a measure of last resort, but particularly under our current circumstances.

One final thought. At the time of the drafting of this article, the United States Congress recently passed a stimulus package known as the CARES Act. Tucked away, deep inside the act is a provision which gives United States Secretary of Education, Betsy DeVos, the opportunity to issue a report to Congress within 30 days with recommendation for any waivers of the IDEA which the Department deems necessary to provide "limited" flexibility to states and school districts as a result of the emergency. Congress must then decide whether to grant any waivers which may be requested. Obviously, this is deeply concerning to parents. The IDEA has existed to educate children with disabilities and protect the rights of families for 45 years. Parents and advocates should keep abreast of future developments regarding this issue, for once we allow vital IDEA protections to be eroded, even under current circumstances, it will become much easier to do so when governmental obligations to people with disabilities becomes inconvenient.•

ABOUT THE AUTHOR:

S. Paul Prior is a partner at Hinkle, Prior & Fischer, with offices throughout New Jersey. The firm has been representing people with disabilities and their families since 1974. Paul has spent his entire legal career representing people with disabilities. As the younger brother of a man with autism, he has a life-long commitment to disability law. His legal work has focused on special education, guardianship, financial entitlements, and access to appropriate services. A substantial part of his practice is devoted to assisting families in estate and trust matters. He has successfully argued leading cases before the New Jersey Supreme Court, Third Circuit Court of Appeals, as well as other state and federal courts. He served as a federal monitor overseeing conditions at state-operated institutions. He holds a JD from Seton Hall University School of Law, and serves on the Board of Trustees of The Arc of New Jersey as well as Eden Autism.