We picked up the kids on Friday for Spring Break, and they just never went back. Every story was varied, but introductions generally began with something like that.
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A Transformative Year for Students with Disabilities
We picked up the kids on Friday for Spring Break, and they just never went back." Every story was varied, but introductions generally began with something like that. School districts across the state introduced families to the concept of the extended spring break. While those extra school vacation days were cheered by children, the "holiday" quickly led to a statewide shutdown, impacting all students, families, and educators. The impact on children with disabilities was in many cases severe.
In the spring of 2020, public schools across the country transitioned to remote learning. Parents who were fortunate enough to work from home did so, and anxiety exceeded our need for boosted internet bandwidth. Many of us tried our hand at homeschooling and modified family and work schedules, calendaring around asynchronous learning and Zoom meetings. For students with disabilities and their parents, however, the new day-to-day meant more than closed classrooms and virtual lessons.
Federal Law that Protects Students with Disabilities
The Individuals with Disabilities Education Act (IDEA) guarantees a Free Appropriate Public Education (FAPE)—or a program tailored to one’s specific needs—to those students in need of special education and related services. The purpose of the IDEA is “to ensure that all children with disabilities have available to them a [program] that emphasizes special education and related services designed to meet their unique needs and prepare them for further education, employ- ment, and independent living.”1 “
[T]he centerpiece of the IDEA’s education delivery system is the Individual Education Plan” (IEP).2 A school district must provide an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.3 Among other things, a child’s educa- tion plan (or the IEP) must include a description of the related services, additional supports and services, the instructional arrangement, program modifications, the duration and frequency of the services, and the location where educators will provide the services.4
The Annual Review and Dismissal (ARD) Committee develops each child’s IEP. Participants in a child’s ARD Committee meeting normally include the child’s parents, at least one of the child’s general education teachers and a special education teacher, a school representative, a person who can interpret evaluation results, and others that can help support the child.5 If the IEP fails to provide a child with appropriate support to make progress (say, for example, a health pandemic highlights a child’s deficits), the ARD Committee is responsible for reconvening and revising the IEP to ensure the school fully meets the child’s needs.6
The Texas Education Agency’s Pandemic Plan for Students with Disabilities
As early as March 2020, the Texas Education Agency (TEA) released its initial guidance on CO- VID-19 to school districts and families. The State guidance mirrored federal guidance and reemphasized that the school district’s legal obligations to students with disabilities under the IDEA did not change. Unfortunately, the State guidance also provided:
If a school continues to provide instruction to the general school population during an extended closure due to a disaster... The ARD committee may meet... to determine if some, or all, of the identified [special education] services can be provided through alternate or additional methods. Once the school reopens, the ARD committee must determine whether, and to what extent, compensatory services are needed.7
Essentially, TEA asked schools to provide services where they could and then assess the dam- age when kids returned to school in person. While public schools in Texas struggled to meet IDEA requirements before the pandemic,8 during the shutdown, things intensified. Texas public schools were not ready to move efficiently to on- line learning.
For students with disabilities and their parents, however, the new day-to-day meant more than closed classrooms and virtual lessons."
School Districts’ Initial Responses
Families of students with disabilities expected some hiccups and growing pains, but far too many faced schools that were either unwilling or unable to serve their children. There were responsive, supportive districts that handed out computers and meals to students, and there were also districts where teachers made it a point to routinely check in on children, with some even making drive-through home visits. We are unbelievably thankful for those educators who refused to allow students in need of additional support to fall through the cracks during the last year. Unfortunately, there were also families who were being left behind.9
Students receiving special education services require specially designed instruction, varying levels of support, accommodations, and ser- vices to succeed in the general education curriculum and make progress per their IEP. Yet, it was not uncommon during the pandemic to see families dealing with schools that failed to assess a child’s individual needs, a practice the law requires of the ARD Committee. Some dis- tricts refused to hold an ARD meeting at all, denying parent requests for Zoom meetings to address student regression. Districts often at- tempted to use a “one size fits all” school-wide program and failed to offer individualized instruction, appropriate supports, or necessary services for children with disabilities.
District response plans were, in fact, as varied as school mascots. Some districts offered remote learning through Zoom or Google Classroom; others provided hardcopy packets stuffed with ditto sheets. There were even districts that had no plan at all. Zoom classes work great for many students, but are far from ideal for a child who has severe ADHD (or one of many other disabilities) and is unable to sit in front of a computer screen focused on her lesson. How does one engage a non-verbal child via a virtual platform? Students whose programs required learning in a self- contained special education setting (i.e., life skills) were often faced with a school program that only offered an internet- based general education program. For students given paper packets, the work assigned was often not on skill level, and it rarely accounted for the student’s disability-related deficits. One local school district, for example, sent worksheets home in an attempt to fulfill IEP speech obligations. Yes, speech. Not surprisingly, the student’s speech progress took a nose- dive.
In many cases, parents observed regression or the onset of new behaviors. In one instance, parents found out that their child would kick, scratch, and bite during Zoom sessions with teachers, behaviors not present before the pandemic. Fami- lies often had to choose between remaining with the school’s misaligned program or prioritizing the family’s mental and physical health.
Discovering Pre-Pandemic Deficiencies
As parents spent more time working with their children, some realized that the school based their child’s IEP on fiction rather than their child’s abilities. Their children could not perform the skills the school had represented had been mastered. Examples include a child who could not read age- appropriate books, yet the school had reported grade-level success, and a school report of proficiency in writing when the skill demonstrated at home was inadequate, at best. In one case, a review of over a thousand education records un- covered years of educational difficulties, the failure of timely and appropriate evaluations, and, ultimately, a need for more intensive intervention. Often when parents make such dis- coveries, legal action is the only way to obtain relief.
Other Issues for Students with Disabilities Related To the Pandemic
States and their respective state and local education agencies must identify, locate and evaluate every child with a disability who needs special education who is residing in its respective state. Many schools ignored their find-and-evaluate10 obligations, incorrectly telling parents that initial evaluations and reevaluations would need to wait.
Some schools began to implement “contingency plans” via blanket IEP amendments sent en masse to parents via email. Although contingency plans emerged from TEA guidance to identify how a school district could implement a student’s IEP during the shutdown, school districts often utilized them to shirk their responsibilities and fundamentally alter the IEP itself. A common example was a one- or two-page document entitled “IEP amendment.” It would include a blanket statement regarding what a child would be entitled to during the shutdown (i.e., twenty minutes of Zoom lessons per week, electronic work posted to See-Saw) but made no mention of the child’s actual IEP. Many Texas parents, distraught by their new situation, either signed the document or missed the email entirely. These unilateral and generic plans went into effect for the parents who did not know their rights.
In the fall of 2020, many public schools made plans for the arduous return to campus. Generally, families could return to in-person classes or continue with distant learning. For students with vulnerable health conditions, remaining remote was the only viable option. For them, the fall of 2020 was not much different than the spring of 2020. As the year progressed, districts began to pressure underperforming students to come back to campus. For many remote learners, the family’s first sign of trouble was a letter requesting their child return to in-person learning. However, school districts had a duty to do more for students with IEPs.
When a student with an IEP fails to make progress or has a concern to be addressed, such as an increase in behaviors, a school district’s first response should be to reconvene an ARD Committee meeting. To continue to offer an IEP reasonably calculated for a student, school districts must ensure that the IEP team reviews the child’s IEP periodically to determine whether the annual goals for the child are being achieved and revise the IEP to address any lack of expected progress toward the annual goals.11
Compensatory Services
The U.S. Department of Education has outlined that the loss of special education services due to the COVID-19 school closures entitles students to compensatory services.12 As of this article’s writing, more than one year has passed since Texas public schools first closed their doors in response to the pandemic. However, many students still have not received compensatory services from their schools. Un- der the IDEA, a complaint (or Due Process Hearing Request) must allege a violation that occurred not more than two years before the date the parent or public agency knew or should have known about the alleged action that forms the basis of the due process complaint, or, if the state has an explicit time limitation for filing a due process complaint under this part, in the time allowed by that State law.13 Problematically, Texas has such a limitation: one year from the date the parent or public education agency knew or should have known about the alleged action.14 The narrow window is problematic for most parents as it often takes more than a year for problems to become evident.
The Texas Legislature, however, recently introduced a new bill—HB 1252—which would increase the limitations period for filing a complaint and requesting a special education due process hearing, to the maximum timeline under the IDEA.15 We hope this bill is one of many proactive steps taken to ad- dress the transformative needs of students with disabilities in Texas.
Kevin Piwowarski Shields and Jennifer Lynn Swanson are special education attorneys at Shields Law Firm, LLP. They serve families and children with disabilities in special education law and special needs planning matters throughout Texas
Endnotes
Individuals with Disabilities Education Act, 20 U.S.C. § 1400(d).
Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988, 994 (2017).
Id.
34 C.F.R. §§ 300.22, 300.323(a).
Id. § 300.321.
20 U.S.C. §§ 1414(d)(4)(A)–(B).
TEX. EDUC. AGENCY, COVID-19 AND SPECIAL EDUCATION FAQ (2020), https://tea.texas.gov/sites/default/files/COVID-19%20and%20Special %20Education%20FAQ%283-13-20%29.pdf.
SeegenerallyU.S.DEP’TOFEDUC.,TEXASPARTB2017MONITORINGVISIT LETTER (2017), https://www2.ed.gov/fund/data/report/idea/partbdmsrpts/ dms-tx-b-2017-enclosure.pdf; Adam Kelsey, Texas Schools Failed to Identify Special Education Students: Department of Education, ABCNEWS (Jan. 11, 2018), https://abcnews.go.com/US/texas-schools-failed-identify-special- education-students-department/story?id=52285774 (discussing a report released by the Department of Education that found the TEA failed to com- ply with federal laws relating to providing services to students with dis- abilities).
Shields Law Firm, LLP (the authors’ firm) conducted “know your rights” webinars for these families.
42 U.S.C. § 1412(a)(3).
34 C.F.R. § 300.324(b).
U.S. DEP’T OF EDUC., QUESTIONS AND ANSWERS ON PROVIDING SERVICES TO CHILDREN WITH DISABILITIES DURING THE CORO- NAVIRUS DISEASE 2019 OUTBREAK (2020), https://www2.ed.gov/policy/ speced/guid/idea/memosdcltrs/qa-covid-19-03-12-2020.pdf; 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 (2020), https://www2. ed.gov/about/offices/list/ocr/frontpage/faq/rr/policyguidance/Supple%20 Fact%20Sheet%203.21.20%20FINAL.pdf.
34 C.F.R. § 300.507(a)(2) (emphasis added).
19 TEX. ADMIN. CODE ANN. § 89.1151(c).
See Tex. House Bill 1252, LEGISCAN, https://legiscan.com/TX/text/HB1252/ id/2251021 (last visited May 16, 2021), to track the legislative progress of this bill.