By Michael Lehr

Chances are your child’s school is closed for the rest of the 2019-2020 school year.  As of April 24, 2020, 43 states had issued orders, either encouraging or requiring public school closures in response to the COVID-19 pandemic.  These public school closures mean educators across the nation got an incredible task: a transition from in-person teaching to an online, distance learning system in a matter of days.

On March 23, 2020, Governor Ralph Northam extended Virginia’s initial school closures through the remainder of the school year.  Regardless of the pandemic and the school closures, educators and lawmakers alike recognized that the school year could not merely end and leave millions of K-12 students behind on their learning benchmarks.  Entire school systems have shifted online, instructing students on sites such as Zoom, Google Suites, or Blackboard, to facilitate continuing education for its students.  One critical demographic of students who are left to struggle more so than their peers, students with intellectual disabilities.

All students across the United States, regardless of race, color, creed, national origin, or intellectual proficiency, are granted the right to a free and appropriate public education (FAPE).  Under the Individuals with Disabilities Education Act (“IDEA”), school systems must provide students with intellectual or learning disabilities the same level of education as any other student.

Specifically, the IDEA sets forth specific requirements for schools to provide intellectually disabled students the “Least Restrictive Environment” (“LRE”) for them to learn.   The LRE requirements mean to ensure all students who have an intellectual disability—no matter how slight or severe—are provided with adequate additional measures to ensure they receive a proper education.  To meet these requirements, schools employ teachers specially trained to work with all manners of intellectually disabled students and craft an individual education plan (“IEP”) unique to each student.  These plans include minor structural changes as extra trips to the restroom during class time, additional time to complete assignments, or more overarching educational instruction plans for highly intellectually disabled students.

After spending countless hours learning the best method to educate the child, teachers then get approval from the child’s parents.  In doing so, the parents agree that the plan in place is the best method to educate their child.  However, given the widespread school closures, many teachers are not able to adhere to the special requirements of the students’ IEPs, leaving them to question if the IEP requirements are still in force, or if they are going to be waived.

In late March, Congress passed the Coronavirus Aid, Relief, and Economic Security Act, or CARES Act.  While this Act is chiefly known for its provisions that provide economic relief in the form of stimulus checks and forgivable loans to businesses, Congress also gave Secretary of Education Betsy Devos 30 days to instruct Congress on whether it should consider further legislation that would grant the DOE the authority to waive specific provisions of the IDEA and section 504 of the Rehabilitation Act of 1973.  After spending a month researching the issue, on April 27, 2020, Secretary of Education Betsy Devos’ office released an 18-page report stating that the DOE is neither seeking nor recommending Congress approve such waiver authority.  However, Secretary Devos’ statement did request that Congress consider certain “flexibilities on administrative requirements under the Perkins Act, the Rehabilitation Act of 1973, and the IDEA.”  Additionally, Secretary Devos did issue limited waivers for certain sections of the IDEA, which will allow schools an extended timeline to offer education services.

By not waiving the pertinent provisions of these federal laws, parents still have the right to require their local school district to maintain their child’s IEP despite the school closures.

Disability advocates around the country have widely applauded Secretary Devos’ decision. They tout the report as instrumental in ensuring that education for children with intellectual disabilities is not further impaired during the pandemic.  However, while school systems have been afforded certain flexibilities in offering digital education to those students with IEPs, many students are still not receiving the instruction set out in their IEP.  Thus, school systems and special education teachers remain in flux.  On the one hand, they are trying to continue to provide exemplary teaching services to all of their students. Still, on the other hand, they must avoid lawsuits by disgruntled parents whose child is not receiving the full course set out in the child’s alternative curriculum.

Moreover, in rural communities, limited access to high-speed internet exacerbates an already troubling situation.  Many school systems across Virginia are working diligently to provide internet, laptops, etc. as needed to their students, but the task is enormous.  As such, it is an unfortunate reality that many children will undoubtedly fall through the cracks during this period.

At this time, teachers and school systems can only do what they can to ensure they meet their student’s needs.  But, this does little to assuage the fears that parents and disability advocates – now authorized to enforce their child’s IEP – will demand a full adherence to their child’s curriculum.  As the shift to online learning has come into being, we all must ensure that parents, teachers, and school administrators work together with the best interests of the students in mind, giving them the best opportunity to learn and succeed.

If you feel your child’s special needs are not being met during this time of remote-learning, call us to schedule a consultation to discuss how we can help your child still get FAPE during the pandemic.