Georgianna Kelman's phone doesn't stop ringing these days. Kelman is a special education lawyer in Los Angeles and currently represents 60 families in Southern California with complaints that their children have not received any benefits they were entitled to when schools closed in the spring.
"I can only imagine the impending litigation bottleneck," said Kelman. "To this day, I have customers who haven't heard from their teachers or service providers."
Due to the abrupt switch to distance learning when COVID-19 conquered the country, districts across the country had difficulty delivering the required student services. It was made even more difficult by the fact that individualized educational programs or IEPs that determine the services for each special student should never be delivered virtually. These services can range from additional tuition or speech therapy to comprehensive individual support for students with serious and complex health needs.
In Los Angeles, Jabril Scott, who is going to kindergarten this fall, is to receive speech, occupational therapy and physiotherapy. But "for the first month (after school) we didn't hear from a therapist at all," said his mother Noel Scott.
When a therapist finally contacted the family, he sent links to handouts for home activities. "It was just really silly," said Scott.
The survey results published in May showed that almost 40 percent of parents, whose children usually receive individual support at school, did not receive these benefits during school closure. Those with IEPs also did little or no distance learning twice as often and were equally likely to say that distance learning was going badly.
Before the schools were closed, Jabril, who has Down syndrome, should also be given a device to help him communicate. When Noel Scott asked about it, she was informed that the office where the device was kept was locked. With schools in Los Angeles closed at the beginning of the year, she does not hope that remote services will improve.
"Especially if we want to do distance learning online, he has to show a lot of commitment to take part," she said.
Special needs students "had the most problems," said Mississippi state superintendent Carey Wright in a recent interview with reporters. She added that her department "heard from parents who didn't feel that their children were getting what they should".
Special education families across the country have stories like that of the Scotts this year. However, whether districts provided services to students with special needs during school closure also varied widely depending on a number of factors, including agreements negotiated with unions when districts already had single device programs and the family circumstances of teachers.
Some districts and regional education agencies that provide special education services say they have already been sued and expect litigation costs to continue to weigh on budgets when many are already facing cuts. Their reports come when the Senate is considering another pandemic relief law that, according to leading Republicans, should include liability protection.
However, John Eisenberg, executive director of the National Association of State Directors for Special Education, said across the board that states had never seen a flood of lawsuits. While some districts may receive more complaints based on how schools responded to families during school closings, the majority of the complaints are "resolved with a phone call," he said.
Nevertheless, at least two cases have received attention so far. And as more and more districts announce that they will be closed at the beginning of the school year, the problems that lead to complaints could continue in the coming year.
In New York City, a disability rights lawyer admitted 200 parents from 10 states to an attempt to reopen schools so that students could receive personal services. With a radio advertising campaign, he is looking for more families to join. In Hawaii, a lawsuit is said to make it easier for districts to compensate for special needs that students did not receive during closings.
The reopening debate leads to additional legal disputes – both in countries where schools are aggressively reopening and in countries where they are not. In Florida, educational groups have sued for Republican Governor Ron DeSantis' order to reopen schools, causing many families to conflict with special needs education.
Parents "know that their children need specially designed instructions in the classroom," said Ann Siegel, director of legal affairs, education, and public relations for disability rights in Florida. In other cases, virtual classes are more individual and positive.
But in California, where Democratic Governor Gavin Newsom imposed restrictions on which schools can reopen, a conservative group filed a lawsuit last week, arguing that students with disabilities are among the most affected by distance learning.
A small survey of parents with special education in the Los Angeles Unified School District found that less than half of respondents said their children received services during the three months that schools were closed in the spring. Others said the therapy offered was not effective.
Fear of "legal challenges"
AASA, The School Superintendents Association, has been working to ensure that the federal government in this crisis has lifted the requirements of the Disability Education Act in this crisis, and continues to look for such a provision in the next aid package and “Protection from Relatives People 'litigation. "
Although the Coronavirus, Aid, Relie and Economic Security Act passed in March provided for important elements of the Special Education Act to be waived, U.S. Secretary of Education Betsy DeVos decided against forbearance. She urged the districts to demonstrate "ingenuity, innovation, and drive" to help students with special needs through distance learning or other methods. It has also not made any request from the Council for Extraordinary Children for flexibility regarding the IEP deadlines.
However, some districts acted independently and asked parents to waive their rights to services for their children. However, such measures were classified as legally inadmissible. For example, the New Jersey Department of Education issued a statement saying such exemptions violate state and federal laws.
In a survey earlier this month, AASA, the National School Boards Association, and the Association for Educational Service Agencies said that 9 percent of respondents to these service agencies received pandemic complaints – essentially asking which families followed are entitled to the law. In addition, 30 percent of school districts and 38 percent of regional agencies said they expected complaints.
Anonymous comments included, "I am concerned that litigation costs could potentially bankrupt our district." And "We are a very small independent district, and a proper hearing could actually shut the district down."
The survey report found that a single due process complaint could cost up to $ 50,000 even if the parties brokered an agreement. About a third of the complaint districts related to special education said they focused on inadequate services and 22 percent on compensation to help students make the same progress they would have made without the services. Fifteen percent of complaints focus on IEP sessions.
The report accuses the Trump administration of "insufficient political support" and that while DeVos offered flexibility in service delivery, "the ambiguity of federal or state policies could pose legal challenges for school practitioners."
Senate majority leader Mitch McConnell, a Kentucky Republican, has repeatedly spoken about providing liability protection in the next federal aid package. On Monday, he and Texas Republican Senator John Cornyn introduced the Safe to Work Act, which aims to prevent "minor lawsuits" against a variety of institutions, including school districts. Sasha Pudelski, deputy director of politics and law at AASA, however said that the bill would not prevent complaints or litigation related to special education.
"Try in good faith"
Eisenberg said that AASA and the other organizations are trying to "sell a narrative" and that there is no evidence that the number of litigation increases compared to a typical year. Districts make thousands of requests for mediation and complaints about due process every year. A report from the US Government Accountability Office last fall showed that requests for mediation – which are considered less controversial than lawsuits – have increased over the past decade while complaints about due process have declined.
Wendy Tucker, senior director of policy for the National Center for Special Education in Charter Schools, added that schools that have tried to provide services in good faith remained in contact with parents and compromised during closure, less likely to do so do see complaints. Most parents, she said, didn't expect perfection.
Linda Litzinger, a public policy specialist at Texas Parent to Parent, a nationwide advocacy group, agreed. She said the parents complained most about the lack of district communication about how and when services were provided.
"(Parents) gave the schools a lot of leeway and it worked for a while," she said. But as weeks passed and the parents hadn't heard of their children's special school teachers or class assistants, the frustration increased.
Many parents, she said, are "on hiatus" because they want to know which boroughs are planning for this fall before filing a complaint or joining a class action lawsuit.
As in New Jersey and Massachusetts, Litzinger said that some families in Texas were also asked to sign exemptions to exempt districts from special education laws or to follow what is in a student's IEP during school closings. Your group said to them, "Please do not sign anything" and have yourself checked by an expert. For example, one parent in the Northside Independent School District was asked to sign a temporary “continuity plan” that explains how services are changed during school closure.
Eisenberg said that such exemptions would "not have legal scrutiny". And Phyllis Wolfram, executive director of the Council's School Administration for Outstanding Children, said she advised districts not to send blanket disclaimers to families and instead "continue to work individually with families as they offer".
"A mixed bag"
However, distance learning benefited some students with special needs, even if they did not receive all the services in their IEPs. Terry James, a grandmother in Escambia County, Florida, called distance learning – and her thoughts about reopening schools – "a mixed bag."
At home, her eldest grandson, Kyrian, who is in first grade, avoided behavioral problems that sometimes took him to the school's “isolation or isolation room”. But he missed the speech therapy he would have received in the classroom. Her younger grandson Karsen joins the state Pre-K program. Since he is still developing language, James said he needed the "initial personal commitment" of a classroom.
This fall, she and her daughter opted for a virtual school option for Kyrian, and were promised that he would receive speech therapy later.
Other families were impressed with how their schools handled the switch to distance learning. Wendy Mauer, whose son Carter attends Suchma Elementary School in the Conroe Independent School District north of Houston, even dropped a complaint to the state education agency about his IEP because of the school's approach, which included home visits from her son's teachers.
"We had several IEP meetings online and communication with employees was completely responsive," said Mauer. “When I said that his work was not related to accommodations, they immediately provided this service. The district also had an excellent online learning portal that parents could use to find resources and activities from their district curriculum specialists. "
With a view to the new school year, Wright said, in Mississippi, many districts plan to include those with special needs in the "first level" of students who are returned to schools for personal instruction.
"This is a place we've never been to. And I'm at the forefront, I don't have all the answers," she said. "We're all trying to fix this ship."
Some states are already using government aid to help districts offer better special education. For example, Oklahoma has used a grant program for special education services from both the primary and secondary school emergency aid fund and the governor's emergency aid fund – part of the CARES Act. Of the 345 districts that received the grants, 74 said they would use the funds for this reason.
In June, the Tennessee Department of Education announced that school districts would receive an additional $ 5 million in addition to what they would normally receive from federal funds for special education to cover additional services that are often provided during the summer or after school.
But that was when heads of state and district probably thought the students would return to school as usual next month. Now there is no clear end to which services the additional instruction or therapy would compensate.
"It sounds like a good idea, but we're now months later," said Tucker.
"Enormous academic needs"
Some experts say that school districts as well as parents must go beyond the question of how special education services – as outlined in an IEP – can be duplicated in a home setting. An IEP contains specific goals for each student. However, it also lists the types of services or accommodation that are required to help students achieve these goals, and where and how often these services are provided.
For example, as long as parents' needs focus on specific hours of therapy sessions, there will be an increase in litigation, said Nathan Jones, associate professor of special education at Boston University. He recently co-authored a reopening research report focusing on special education.
While students have a right to what is in their IEPs, it is now more important to focus on what students need academically, to regain what they have lost, and to make progress when school is resumed. How, he asked, do schools "meet the enormous academic needs of students when they enter the door, be it in person or virtually?"
He highlighted New Hampshire Governor Christopher Sununu because he asked the IEP teams to meet before the end of the school year, offer extended services for the school year if necessary, and then another one within 30 days of the start of the school year To hold IEP meetings.
Rather than encouraging families to file complaints, Siegel in Florida advises families to focus on having their children assessed at school and what additional services are needed.
"Frankly, this isn't a blame game," she said. "We are together in this pandemic."
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