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Special Education Law and Advocacy during the Time of COVID-19: A Q&A with Peter Wright

Photo of a boy on a computer

Marina Sarris

Date Revised: August 25, 2020

Students are beginning a new school year amid the uncertainties of a COVID-19 pandemic that continues to affect many communities across the United States. Many students will continue with online instruction from home, while others will return to school buildings that have been closed since March. Most parents have questions about how education will be delivered during the time of COVID-19, but those whose children have disabilities have particular concerns about special education and therapies.

Peter Wright, a special education attorney who won a disability case before the U.S. Supreme Court, spoke with SPARK about some of these issues. Wright represented Shannon Carter, a student with a learning disability, in a tuition reimbursement case before the Supreme Court in 1993. He and his wife, Pamela D. Wright, discuss special education law and advocacy in seminars, books, and on their website, Wrightslaw.

Q: The pandemic created unusual, even unprecedented, situations for many schools nationwide. What are the biggest concerns facing families this fall with regard to their students’ special education programs and accommodations? Are those concerns greatest for students who will be returning to online classes or distance learning?

A: I’m hearing that there’s an incredible diversity of special education services. Some parents are complaining that the students are not really getting anything at all, but in some cases, I’m amazed at how comprehensive and intensive the services are. Some private sector schools were up and running with distance learning in about two weeks after schools were shutting down. There is a public school district in Ohio that is providing comprehensive services for kids with disabilities. It’s almost as though if you step across the street and go to another jurisdiction, the services might be horrible or they might be excellent. I can’t say that it’s the affluent districts that are the ones always providing great services because we know of some that are having a hard time of it.

So what’s going to happen when school starts up? Some of the families, especially those of kids with severe and profound issues, and socialization and behavioral needs, will be hard pressed to do an online program. The whole function of public education is going to change incredibly. People will look back on this time 100 years from now as being the equivalent of the industrial revolution with regard to both education and computerized technology.

Q: Many schools closed for extended periods of time earlier this year due to COVID-19. In a March 21, 2020, statement, the U.S. Department of Education said that school special education teams must determine whether and to what extent a student may be entitled to “compensatory services” when schools “resume normal operations.” As you say on your Wrightslaw website, courts have in the past ordered schools to compensate students with extra services when they failed to meet the students’ educational needs for a period of time. How does a parent know if their child is entitled to compensatory services?

A: That question has to be answered by every parent. In order to accomplish that, parents have to take some steps. First, get the data of where their child was testing in skills, most importantly reading, writing, and arithmetic, and speech and language, prior to COVID-19. That may be found in the last comprehensive psychoeducational evaluation, or they might have to look at standardized testing. They have to get the kid’s complete file from the school district, and they have to understand the test data. An example is if a child had a standard score in reading of 85 three years ago and was found eligible for an Individualized Education Program, or IEP. He was tested in December 2019, and the standard score was down to 70, and the parent was told everything’s OK. But everything’s not OK. The standard score of 85 meant the child fell in the 16th percentile rank, and the standard score of 70 meant the child dropped to the second percentile rank.

What does a kid need now, given what’s happened with COVID-19 and the change in the quality and quantity of educational services? Presumably, in most scenarios, the kid is getting less than what he was getting before. That’s going to require a comprehensive evaluation.

Q: How are students going to get a comprehensive evaluation now?

A: You’re going to ask for a re-evaluation in light of what’s happening with COVID-19. The kid has not been receiving all the services. We need to see where the kid is now so we can then create an IEP that is appropriate. What that may mean is that the child has fallen behind.

It’s almost akin to the concept of Extended School Year, or ESY, services, or summer school. It has long been understood that kids may be in need of ESY depending on whether they regress during the summer time and how long it takes to recoup the lost skills. What we have with COVID-19 is a significant cutback on the quality, intensity, and duration of services for most kids with special needs, which triggers two legal concepts. One is the issue of ESY — you’re asking for more services than regular education kids would necessarily get.

But also the U.S Department of Education issued a memorandum months ago that said school districts would have to look at the need for compensatory educational services. Compensatory ed is a concept that was developed by case law. Take a simple scenario: a child didn’t receive speech and language services for two years because his speech-language therapist left and they never got anyone else to provide the services. Courts have said in that scenario the kid would be entitled to extra speech-language services because the school dropped the ball.

I would encourage anyone who thinks they might want to get compensatory ed services to read an article on our website that has links to all the cases. Then a parent would want to find the most recent compensatory ed cases within the state and federal courts in their area. Then they would know how to frame their need for compensatory ed. If you frame it as a clear issue of fault by a school district, you may end up creating bad case law for everyone else. Rather than blaming the school district for COVID-19 or blaming the school district for a failure to provide quality services, like the public school district on the other side of town did, you might say, “Despite the bad circumstances of COVID-19, it shouldn’t mean my child with a disability should go from bad to worse now.”

The parent will have to learn about the quality of the upcoming services in their school district and decide whether they want to ask the school district to provide the services. The other option is a private special education school.

The law now says that if a parent wants to put a kid into a private special ed school because they believe that the public school program is not appropriate, and if they can prove the public school’s IEP is not appropriate and the private program is, then they can get reimbursement, subject to one thing. They have to give the school district 10 business days notice of their intent to remove the child from the public school and put the child into a private school. That gives the school system the opportunity step up to the plate, and say, “You don’t need to do that, and we’re going to do this or that.” [How to write a 10-day notice letter will be discussed in a separate SPARK article. It can also be found on the Wrightslaw website and the Wrights’ book, “From Emotions to Advocacy.”]

Q: Would the parents have to hire an attorney and file a lawsuit to get compensatory education services?

A: That’s a possibility, but it’s not absolute.

Q: Must an IEP meeting be called to approve any changes to an IEP that are caused by distance learning this fall? Maybe a child no longer has access to a teacher’s aide or a service, for example.

A: COVID-19 did not authorize a dilution of services under an IEP. I would be very reluctant to have a parent agree to a change of the IEP because the school can’t provide the services that were in the IEP. IEPs are not to be designed based upon the ability of the school to provide the services. Before the federal special education law was passed in 1975, schools used to say that “we can’t provide services to your child because your child is in a wheelchair, and we don’t have any elevators for the eighth grade classroom on the second floor, and we don’t have any ramps, and we can’t afford to build an elevator or put ramps in. So therefore your child is suspended indefinitely.” In special ed cases that went before the U.S. Supreme Court, including my case, the Carter case, schools argued that, if you rule in favor of the parents, it’s going to bankrupt the school district. That’s not a legal defense. The IEP is to be based on the educational needs of the child.

[If the school wants to reduce a service due to online learning issues], I would want to use it as a bargaining chip and have something in writing to the effect that, “we agree that my child needs three hours of speech-language services, face to face, one-on-one, per week, but given that school is being closed several days a week, it’s not feasible at this time. But it’s agreed that within three months we will reevaluate this. We recognize there’s an accruing entitlement to compensatory education with regard to this temporary deficit in the agreed upon services.”

I would be very careful with that agreement. Don’t count on it unless it’s in writing. If there are some side understandings, the parent needs to send a follow-up letter right away clarifying their understanding. The letter can say, “While it’s not in the IEP in writing, it was agreed by everyone in the meeting that X, Y, and Z. If I’m misunderstanding this, please let me know immediately, and I may need to consider withdrawing my consent.”