While many schools have been closed for the past year, or at least part of it, that should not mean a loss of instruction or services for your child. None of the executive orders or public health directives issued in response to the COVID-19 pandemic waive the laws protecting your child’s right to a free and appropriate public education (FAPE) under the Individuals with Disabilities in Education Act (IDEA).

IDEA entitles eligible children with disabilities to special education, supplementary aids and services, and related services through an Individualized Education Plan or IEP. During any current school closures your child retains their right to FAPE. You can call an IEP meeting at any time, to be held within 30 days, even if it is held via a Zoom meeting or phone call. Your child’s right to be evaluated has not been suspended. If your school district tells you that IEP meetings and assessments have been suspended or that they cannot provide your child’s services as outlined in their IEP, ask them for that information in writing and contact a special education attorney or advocate to help you.

Over the past year, we have heard many parents describe their child missing some or all of their educational and/or related services outlined in the IEP.

 “There has been no instruction from a teacher in our school district. We receive lesson plans with online lessons only. My child is starting to regress. Is this OK?”

Document, document, document

First and foremost, document everything in writing. Because you are home with your child during the pandemic, your data collection is the most meaningful record of progress or regression (unless your child is attending in-person schooling or receiving in-person evaluations). You may be the only one who can provide current, baseline data.

  • If you don’t know how to track your child’s progress, use the IEP goals to start. Look at your child’s current IEP and if you don’t have the most recent signed IEP, ask your child’s school to email it to you.
  • Look on Teachers Pay Teachers or other websites for free progress monitoring worksheets.
  • Keep all of your child’s work (or screenshots) and log their activities (with dates, descriptions, and reactions to their workload or assignments). If this feels overwhelming, or your child is melting down with every assignment presented, make a video of the skills you are most concerned about at least twice a week.

Write a letter to the special education director

If you cannot collect data because you are not able to support your child with learning at home, it is also important to let your district know this in writing. Most parents cannot possibly become their child’s teacher, paraprofessional, therapist, behavior coach, PE teacher, and tutor. If your child requires 1:1 support and the parent or another family member is providing it, document that as well.

The next thing is to look at your child’s needs. While your school district may insist that a  reduction in class time or service minutes is ‘fair’ or ‘equitable’ because all of the students in the district are getting the same reduction in service time, the reality is that the school is still required to provide a free and appropriate public education (FAPE) based on your child’s unique needs. It’s okay to ask for more than what the district is offering. A reduction in service time or a removal of a related service or specialized instruction should be determined based on the child’s current evaluations and data, not because of the pandemic.

For example: in their regular IEP your child receives four 30-minutes speech sessions per week (2 pull-out small group sessions with 2 other conversational partners, and 2 push-in sessions in the classroom to work on conversation and pragmatic/social skills). Once remote learning began, your district offered four 10-minute, 1:1, virtual sessions per week (reducing your child’s service minutes from 120 minutes per week to 40 minutes per week). Did your child’s needs suddenly change to no longer require conversation partners or practice in pragmatic language skills? No. It’s important to state what your child needs and insist that it continue. If the school district refuses, ask that the district provide you with “prior written notice” (PWN) explaining the basis for their refusal. 

A note on PWNs: Some districts are sending PWNs to all students with IEPs outlining a reduction of overall services – a ‘blanket’ or ‘district-wide’ PWN – but PWN must be a specific description of why the school is refusing to provide needed services for your child. A blanket PWN is not individualized and does not take into consideration each child’s individual needs. 

Then document everything well – because you may also consider filing a claim for compensatory education.

What is compensatory education?

By law, students who do not receive the special education services outlined in their IEPs are entitled to make-up services. According to the Council on Parent Attorneys and Advocates (COPAA), “Compensatory education is designed to put a student in the place they would have been had the student not been deprived of special education and related services.” (see COPAA’s COVID-19 page.) 

Compensatory services are not just about service that were not provided, but also services that did not provide any benefit. If your child cannot make progress or access instruction via Zoom, or they require 1:1 support to attend (and you, the parent, were the paraprofessional for your child) you may consider filing a claim for lost or missed services. When special education and related services are not provided in accordance with your child’s IEP, regardless of the reason, this may warrant compensatory education services. 

In some cases, this could result in getting services your child is entitled to via a different provider. During COVID, this may mean hiring a private therapist or service provider if the school district is not providing needed services. However, it’s important to notify your school district in advance if you intend to seek reimbursement for the cost of these services.

In other cases, it’s a matter of documenting the ‘lost’ minutes of service time and requesting that the district provide these services in the future. 

Students with significant and complex needs and those who have shown regression are more likely to need compensatory services. Transition aged students may also be entitled to compensatory services. If you are considering this option, it’s best to discuss this with a special education advocate or attorney, or contacting your state Disability Rights or Legal Aid organization.

If you feel overwhelmed about the thought of filing for compensatory education, don’t let that stop you from at least advocating for what your child needs going forward. Even during COVID, your child is still entitled to a free and appropriate education.

Upcoming presentations on this topic:

Resources:

about the author

Audrey Vernick is our Director of Patient and Family Advocacy. She is the parent of a child who had hemispherectomy for seizures caused by stroke. She holds a level 2 certification in Special Education Advocacy Training from the Council of Parent Attorneys and Advocates and is certified by The ARC in future planning. She also serves on the International League Against Epilepsy’s Social Work and Social Services Section.

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