In-Person Options for Students with Disabilities

August 31, 2020

By Hillary D. Freeman, Esq.

Disclaimers:

  1. The contents of this article are for educational purposes only and should not be construed as legal advice.
  2. It should also be noted that the guidance on this issue is constantly evolving, so while we will make every effort to update as appropriate, you are encouraged to consult with appropriate professionals to ensure the guidance has not changed since this writing and that the contents of this article apply to your individual situation.
  3. This article is not intended to promote or discourage in-person instruction as there are benefits and risks to each approach. This article is just intended to make you aware of your rights so you can make a decision that is appropriate for the child’s individual circumstances.

Introduction

By now, most, if not all, families have hopefully learned of their child’s school’s plans regarding how their child is going to receive instruction. As of this writing, a small number of school districts are opening up so students will attend in person for five full days per week, while other districts are offering either a hybrid option (mixture of in person and remote instruction), or have opted to start their year off entirely on a remote basis. Regardless of the district, parents will have the option of keeping their child home if they don’t want their child to start in-person in the fall.

Challenges All Around

While there were certainly significant challenges for all students with shifting to remote education so suddenly in March, these challenges were even more prominent for children with autism, their parents and their teachers. Simply put, many students with autism (and other disabilities) were not able to access their education through distance learning as the circumstances from the pandemic prevented many IEP services from being implemented effectively, if at all. As a result, many students failed to make educational progress and even regressed.

Wondering What’s Possible

Not surprisingly, many families are now desperate to learn whether there are any circumstances for which their child with autism can receive in-person instruction when classes resume. While the guidance is limited on this issue, I would argue that based on my analysis below, there certainly are circumstances where in-person instruction must be provided to students with disabilities upon request. The more difficult question is “Where?”

Federal Guidance

The core tenets of IDEA and Section 504 remain intact as long as instruction is being provided

Timeline:  March 2020

In March 2020, the U.S. Department of Education (USDOE) issued guidance regarding a school’s obligation to its students when operating that the states and local school districts must make every effort to implement the IEP and/or Section 504 plan to the “greatest extent possible.” While they understand that there may be circumstances that affect how the services and supports are provided, that can be addressed by evaluating the need for compensatory education by the IEP team when schools resume normal operations.

Timeline:  April 2020

The USDOE then reaffirmed its position on April 27, 2020, when U.S. Secretary of Education Betsy DeVos submitted a Report to Congress regarding the Recommended Waiver Authority as required by the Coronavirus Aid, Relief, and Economic Security (CARES) Act (P.L. 116-136) and significantly, did not request a relaxation for any of the essential components of the IDEA or Section 504 of the Rehabilitation Act of 1973, which set requirements for a free appropriate public education in the least restrictive environment. More specifically, school districts are still required to convene meetings, administer evaluations (although timelines may be extended) and provide educational programs that ensure equal access to educational opportunities and for those students with IEPs, implement programs that are reasonably calculated to enable the child to make progress appropriate in light of the child’s circumstances. See Endrew F v. Douglas County School District (U.S. March 22, 2017). This means that it is mostly business as usual for students who have 504 plans and IEPs.

IEPSs and 504 plans must be implemented to “the greatest extent possible” and it is likely possible to implement parts of the IEP/ 504 plan in-person

Equal Access

If your school district is providing remote educational opportunities either on a part-time (hybrid) or full time basis, the school district must also ensure that students with disabilities have equal access to the same opportunities, including their access to FAPE, pursuant to Section 504 and IDEA. This includes following the procedures outlined in the IDEA and/or Section 504 as well as implementing related services and support in the child’s IEP or 504 plan — “to the greatest extent possible”.

In-Person Services

Since IEPs and 504 plans were designed to be implemented in person by a certified teacher and/or related service provider to ensure the student(s) are able to access and/or meaningfully benefit from the educational program, a school district will need to exercise its due diligence to determine whether it is possible to implement the IEP in person (upon request) either in the district, home, by a private agency or in an out of district placement.

Example 1

If your child’s IEP or 504 plan provided for the assistance of a paraprofessional; Registered Behavioral Technician (RBT), Board Certified Behavior Analyst (BCBA); Occupational Therapist; Special Education Teacher and/or Speech and Language Therapist while instruction is being provided by the teacher, then the school district should exercise due diligence to assess whether there is a provider (in district or from a private agency) who is willing and able to provide the same assistance in person while the teacher is teaching the lesson remotely, upon the request from a parent or guardian.

Example 2

Likewise, if a student’s IEP identifies a need for a structured ABA program 5 days per week to receive FAPE, and the district is not able to provide this while maintaining a safe environment, the IEP team may want to consider either supplementing the ABA program with a private agency (when appropriate) or sending the student to an out of district program that can provide in-person instruction consistent with the student’s IEP.

Maintain Services

Parents should not request or agree to revise the student’s IEP to reduce or eliminate services to accommodate the remote instruction model

In any event, parents should not request or agree to revise the student’s IEP to reduce or eliminate services to accommodate the remote instruction model. Alternatively, the IEP team may amend the IEP to add services, supports and goals to teach the student additional skills that may now be needed for the student to access his or her education, but under no circumstances should services or supports be reduced or eliminated. To the extent the services cannot be implemented, the IEP team should convene a meeting to discuss the need for compensatory education to make up for any loss of skills or lack of progress that resulted from the barriers to implementing the IEP in its entirety.

Dispute Resolution

We encourage the parties to work together as much as possible to develop a program will meet the student’s needs.

Acknowledging Pandemic-related Challenges

There is no doubt that the majority of educators and parents are navigating uncharted territory with respect to the provision of special education and related services during a pandemic. Given that the circumstances are relatively new to everyone, we encourage the parties to work together as much as possible to develop a program will meet the student’s needs.

Procedural Safeguards

In the event however that the parties are unable to reach an agreement, parents still have the right to challenge the decisions made by the district through Complaint Investigation and/or due process proceedings. If this is necessary, the parties will be able to participate in a resolution session/mediation (via Skype) and/or settlement conference before an Administrative Law Judge to resolve their issues in dispute (via Zoom). If the parties are still unable to resolve their differences, a due process hearing will be held (currently over Zoom) for an Administrative Law Judge to decide what services and supports the student needs to receive FAPE.


About the Author

Hillary Freeman, Esq. of Freeman Law Offices, LLC is a sister of a man with autism and a national/international speaker in disability related matters including: special education, Section 504 issues, SSI/Medicaid, Guardianship/Estate Planning Matters and adult services. She is able to combine personal experience with her legal training to help families advocate for services and supports at IEP/504 meetings as well as in due process proceeding and federal litigation. She was named a Rising Star℠ by Super Lawyers & Magazine for from 2013-2020, has presented at the United Nations for World Autism Awareness Day, as well as in Ghana and Liberia in 2019 for their first Autism conferences ever. She holds a JD from Widener University School of Law and practices in both Pennsylvania and New Jersey.


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