Bipartisan Efforts in the Senate Address Shortfalls in Special Education in Wake of Coronavirus

As school districts await further guidance on special education during the COVID-19 pandemic, Senator Chris Murphy (D-CT) and Senator Bill Cassidy (R-LA) are pushing for the United States Department of Education to hold school districts accountable for providing a free appropriate public education as much as possible.

“Our education system is grappling with the transition to distance learning due to COVID-19, but now is not the time to backtrack on our commitment to provide a quality education to all students with disabilities. Instead, this is a moment where Congress needs to provide additional guidance and resources to schools to make sure that they comply with federal disability education laws despite the circumstances,” Murphy said.  

Murphy and Cassidy outlined their requests to Secretary of Education Betsy DeVos in five principles that emphasized their goal of not weakening the Individuals with Disabilities Education Act (IDEA).

“These principles, which should form the basis of legislation in the next COVID relief package, acknowledge that states and school districts will need some flexibility regarding timelines during this crisis. But our principles also underscore the need to maintain the core protections of IDEA and the need for Congress to provide specific funding to support students with disabilities, and we hope Congress will include these resources in the next relief bill.”

Murphy and Cassidy requested that any leniency granted to school districts regarding timelines be narrow, targeted and temporary, while maintaining rights to due process for families. They also requested that any flexibility be communicated clearly to districts and families. Lastly, Murphy and Cassidy requested that the performance of students with disabilities be diligently recorded.

“We note that advocates for students with disabilities have recommended Congress appropriate $10 billion to help schools meet IDEA requirements during and immediately following the period of school closures,” Murphy and Cassidy noted. “Resources should be targeted toward ensuring students can fully access distance learning and virtual services that replicate students’ accommodations to the extent possible, in addition to supporting the school personnel necessary to provide an equitable education for students. Further, resources should support the planning and implementation of innovative strategies to get students with disabilities back on track when schools reopen.”

Despite these recommendations teachers and officials say that equal education and services under the circumstances is nearly impossible and that adequate solutions will be more a matter of compensatory education provided afterward.

Making up for lost time

The original guidance from the federal and state departments of education was to “provide education to all students to the greatest extent possible.”

“It wasn’t specific enough for your local school district to implement any meaningful remote distance learning with fidelity for a kid on an IEP,” said Jeff Forte, a Connecticut-based lawyer who works with students and families with special needs. “School districts across the state are interpreting it differently and causing serious inequities and confusion.”

The Individualized Education Plan (IEP) generally serves as a roadmap for students, districts and families. Many IEPs, however, include services such as paraprofessionals, behavioral support, occupational therapy, physical therapy and specialized tutors that are far more difficult, if not impossible, to provide remotely.

“Despite the very best intentions during this time, we can’t send them to student’s homes. This lack of services is not a reflection on the districts at all, it’s a practical reality that this is going to be a time where candor is required,” Forte said. “Right now is not the time to be litigious, there needs to be an understanding that for children that have disabilities you simply can’t deliver everything on the IEP remotely.”

Even with the best effort and intentions, there will be lost learning and regression for many if not all students, especially those with disabilities, Forte said. The focus should be on identifying and addressing these shortfalls when regular school resumes rather than putting the onus on districts and teachers under the circumstances.

“Compensatory education is a legal term, it’s essentially an analysis to determine the amount of time and services that a child has lost or been deprived of during a certain amount of time,” Forte said. “It’s basically a fund, a certain amount of money set aside to deliver services as a form of relief.”

Services like afterschool tutoring, summer school, additional supports during the school day or education at alternate facilities.

The $10 billion advocates are requesting would help school districts provide compensatory education.

In order to give children the best chance of receiving compensatory education, Forte said parents should be using this time to observe their child and track behaviors, skills and other data that could be used in a planning and placement team meeting or reevaluation.

“Parents that have data on their child’s learning are better equipped to be receiving remediation or compensatory education,” Forte said. “The questions are not going to be whether students are regressing or not, the questions is going to be to what extent have they regressed and parents should be able to show that.”

Although many traditional special education services are impossible during the COVID-19 pandemic, according to the Connecticut Department of Education, planning and placement team meetings as well as mediations should still be happening according to Forte.

“School districts should be conducting those,” Forte said. “If they’re not complying, that would be a time to be litigious.”