The Impact of School Closures on Children with Disabilities
New Jersey Law Journal
January 11, 2021
The coronavirus pandemic has undoubtedly been a struggle for most students, educators, and parents. With little notice, districts had to pivot to remote learning platforms, and teachers were made to learn technology and create new ways for children to learn online. Beyond the connectivity and technology issues many students faced and still face, students had to adapt to a new learning environment and the social challenges of learning from home. Many parents are overburdened, especially those who are working and/or have younger children and students with special needs. While there has been a lot of progress made since March 2020, remote learning continues to present significant challenges for children with disabilities.
Because no core tenets of special education laws have been waived, school districts, including those in New Jersey, have an obligation to provide students with disabilities a free appropriate public education (FAPE) as required under the Individuals with Disabilities Education Act (IDEA) and its regulations, as well as other special education laws. See 20 U.S.C. §1400 (2004) et seq.; 34 C.F.R. §300.1 (2006) et seq. In order to satisfy the mandates for FAPE, school districts must deliver special education and related services in accordance with students’ Individual Education Plans (IEPs). See 20 U.S.C. §1401 (9)(D). According to federal guidance issued at the onset of the pandemic, school districts should provide special education services to the greatest extent possible. See U.S. Dep’t of Educ., “Questions and Answers on Providing Services to Children with Disabilities During the Coronavirus Disease 2019 Outbreak” (March 2020); see also U.S. Dep’t of Educ., “Supplemental Fact Sheet Addressing the Risk of Covid-19 in Preschool, Elementary and Secondary Schools While Serving Children with Disabilities” (March 21, 2020).
Governor Murphy closed New Jersey schools for in-person instruction from March 16, 2020, through the end of the 2019-2020 school year. Once schools reopened, the New Jersey Department of Education granted local school districts the discretion to deliver education in a way that makes the most sense for each individual school district, as long as the district met health and safety requirements. District opening plans have varied widely from district to district, leaving many parents and students frustrated. The frustration is heightened for families with special-needs students, because providing special education services has proven challenging in all districts, regardless of the manner in which instruction is provided. Currently, New Jersey has approximately 584 operating school districts, with charter and special needs schools bringing the total to more than 800. Approximately 246 schools are utilizing exclusively remote instruction, 438 are using a hybrid model, and numerous schools have had periodic closures due to high coronavirus levels. See John Mooney, “Stay Open, Go Remote or In Between? Murphy Argues for In-Person Instruction,” N.J. Spotlight (Dec. 3, 2020); see also New Jersey Dep’t of Educ. Public School Fact Sheet (2018-2019). The question remains how to provide the more than 200,000 New Jersey students with special needs FAPE in the current environment.
In a poll released in early November, only 42% of parents rated their children’s remote learning experiences as successful. See Global Strategy Group Online Survey (Nov. 17,2020). Under the best of circumstances, the difficulties with remote learning are magnified when a child has a disability. Given the difficulty with remote instruction for children with disabilities, and the knowledge that in-person instruction is the best option for all students and more so for students with special needs, many districts have prioritized students with special needs and offered at least some level of in-person instruction. However, in the face of multiple positive coronavirus cases, many schools have now opted to close their doors, citing health and safety reasons, leaving remote learning as the only option. Countless families are trying to keep their children from falling behind, but with no in-person instruction, disabled students and families are left in a very difficult position. In many cases, students are not receiving meaningful benefit from the virtual instruction, and parents are being stretched to the limit.
Students Have a Right to Receive Special Education and Related Services Provided for in a Pre-Pandemic IEP
Special education encompasses a wide range of services, including, for example, specialized reading instruction, in-class support, assistance of paraprofessionals, and assistive technology for students who are hearing impaired or who have multiple disabilities. Special education students have IEPs pursuant to which these services are provided to ensure that the student receives FAPE. More specifically, the IEP identifies the special education, related services, and supplementary aids and services that the child needs and further sets forth goals and objectives for the student. If a child has an IEP, that child has the right to receive all the services the IEP provides to the greatest extent possible, despite the coronavirus pandemic. In other words, unless a parent or guardian consents to modification, the IEP in place pre-COVID-19 remains in effect and must be implemented by the district. As such, parents should not agree to IEP modifications that eliminate or decrease services because of the pandemic. In fact, additional services may be needed to address learning loss or delay experienced since March.
In April, the State Board of Education adopted a temporary rule modification to permit the provision of special education and related services by electronic means, including online and virtual platforms. See New Jersey Dep’t of Educ. Memo “Providing Special Education and Related Services to Students with Disabilities During Extended School Closures as a Result of COVID-19” (April 3, 2020). Although well intended and helpful to many special education students, this modification does not help those students who cannot use a computer without assistance, are nonverbal, or simply cannot stay on task while they are working remotely. IEP services in general are challenging for teachers to implement in a virtual setting, but in these situations, learning remotely can be impossible for many students with special needs.
By way of example, imagine a student who is nonverbal with multiple disabilities, including impaired cognitive abilities, who cannot turn on a computer or participate in online classes without assistance. The district indicates that the school will be providing remote instruction via Google Classroom with the child’s teacher and a remote paraprofessional. Now imagine that the student has working parents who cannot assist, and the school has refused to provide a paraprofessional or aide in the home due to safety or other concerns. Parents are instructed to have the student log in to the Google Classroom to participate in instruction. If only it were that easy. Because the student cannot navigate Google Classroom without assistance and the district cannot or will not provide support in the home, the child is left without access to instruction. When the parents take issue with this resolution, the district offers to review the matter prospectively when school reopens. Effectively, the student will not receive any education until school reopens and the situation is reviewed.
Some districts may also take the position that compensatory services will be considered when the students return to school. Compensatory education services are generally defined as services that are provided to make up for services that were not provided per the student’s IEP. For example, if an IEP provides that a student receive occupational therapy two times a week for 30 minutes, but the school did not schedule the appointments, then the family may receive compensatory services from the school district. This may sound good for many students, but realistically, in the above hypothetical, how does the hope of compensatory education give comfort to a student who cannot participate in school virtually and has missed a significant amount of school since last March due to school closures?
If IEP Services Are Not Provided, What’s Next?
Many parents/guardians delayed approaching their children’s schools because they thought the situation was temporary or that learning loss was expected. Some have just been completely overwhelmed. Regardless of the circumstances, the pandemic cannot be an excuse to deny a child’s right to FAPE. The pandemic has undoubtedly lasted longer than anyone expected, and now learning gaps are widening and regression is mounting. For many students, it has been almost a year since they have been in school full time and/or they have missed a significant amount of school due to school closures. The first step for parents/guardians to take if their child has not or is not receiving all or some of the services contained in the IEP is to put the district on notice in writing. Additional services, programs, or placements may be needed such that the student receives FAPE during remote instruction. Parents/guardians can also speak with their child’s teacher or case manager or request that an IEP meeting be scheduled to address the child’s needs. A child may need a one-to-one aide or paraprofessional during the pandemic to keep him or her on task, provide redirection, or manage behaviors. If appropriate, another option for a parent or guardian is to request an out-of-district placement that provides in-person instruction. In many situations, this may be an appropriate request but difficult to obtain, so proper documentation of the issues associated with remote learning is critical.
The pandemic is difficult for all students and their caregivers, but for many special education students, the situation has proven untenable. With the vaccine offering hope that children may soon return to school full time, parents should document any learning loss and/or missed services in preparation for a request for compensatory services. Upon return to full time instruction, IEPs will likely need modification to include any additional services that are needed to integrate back to in-person instruction.
Reprinted with permission from the January 11, 2021 issue of the New Jersey Law Journal. © 2021 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved. For information, contact 877-257-3382 or firstname.lastname@example.org or visit www.almreprints.com.