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Extended School Year 2021: Top 5 Ways to Limit Legal Risk
COVID-19 created extraordinary circumstances in education. Closures and remote instruction isolated students, required novel IEP implementations, and raised significant questions about whether student needs were appropriately met. Those extraordinary circumstances raised extraordinary questions about school legal exposure under conventional legal requirements.
As an educator you have a precious (albeit fleeting) opportunity to address pressing factors that impact legal exposure during Extended School Year (ESY). Below, we count down the top 5 action steps you may take to proactively limit potential COVID-19 legal risk: applying Child Find, understanding “Comp Ed,” developing a meaningful re-entry plan, avoiding language that creates future legal problems, offering summer services, and preserving (or creating) student progress data.
5. Listen to the Child Find bell
You have the opportunity now, before the start of the (hopefully) post-COVID-19 school year, to confirm that all learning needs will be addressed. Educators should pay particular attention to Child Find responsibilities related to COVID-19 closures now.
Educators always have a responsibility to identify students who may be in need of special education. That Child Find responsibility is often most considered with specific learning disorder (SLD) difficulties, and many people think the responsibility is forever satisfied on referral.
Child Find applies to all disabilities, and to students in both general education and (already eligible) special education environments. Child Find is the “teeth” of the Individuals with Disabilities in Education Improvement Act (IDEIA), placing an expectation on educators to find students who require special education on account of a disability’s impact on learning.
This Child Find responsibility is particularly significant as we emerge from COVID-19 closures.
Our students and their parents and guardians just experienced a great trauma. Educators need to pay attention to the effect of COVID-19 closures and isolation and consider whether current student performance, including affect, behavior, and other presentation, raises questions about a possible need for special education.
Many students will interact differently through the new medium of virtual instruction. And not every changed grade or distracted learner requires special education. But schools need to pay close attention to changes in student performance because those changes may ring that Child Find bell that triggers evaluation and possible services.
Did students disengage during remote learning?
Were atypical behaviors observed?
Did students fail to make anticipated progress?
Are students presenting differently?
Is the current (or proposed) program of special education and related services addressing all needs?
Use this ESY time to ensure that student need is accurately met. Refer where needed, complete outstanding assessments, and be ready to address the whole learner when students return this fall.
4. Explain that Comp Ed isn’t automatic
Conventional wisdom has slouched toward an incorrect definition of compensatory education, or Comp Ed, following COVID-19 closures and remote instruction. Parents, guardians, and educators need to understand what Comp Ed is and is not. And you need to tell them.
Comp Ed is not an entitlement for extra service for every student in special education. Comp Ed is actually a legal remedy, something that parents or guardians may pursue through due process or mediation under the IDEIA, just like tuition reimbursement for unilateral placements, the recovery of attorneys’ fees, or other “damages” that may be sought when proving that a student didn’t receive FAPE.
Comp Ed “aims to place disabled children in the same position they would have occupied but for the school district’s violations of IDEA, by providing the educational services children should have received in the first instance.” G.L. v. Ligonier Valley School District Authority, 802 F.3d 601, 608 (3rd Cir. 2015). In fact, “a child’s right to compensatory education occurs from the point that the school district knows or should know of the injury to the child, and the child is entitled to compensatory education for a period equal to the period of deprivation, but excluding the time reasonably required for the school district to rectify the problem.” Id. at 618-19.
That means that Comp Ed is recoverable when a special education–eligible student’s rights are violated. Comp Ed seeks to make a student whole. Comp Ed may involve IEP services that weren’t delivered. Or it may be services owed because a school misidentified or incorrectly programmed for a student.
FAPE remains FAPE. Comp Ed is only owed when FAPE was not provided.
With regard to the “walk through the desert” that was the 2020-2021 school year, educators should be asking: Did we provide, albeit virtually, all services we agreed would be provided in an IEP to the student? Did we provide substantially all of those services? If the answer is yes, then likely there is no claim to additional services.
If the answer is no, an entitlement to Comp Ed services is still not automatic. Rather, IEP teams need to consider whether FAPE was experienced, regardless of a deprivation of services.
And how do we most efficiently and accurately determine whether or not FAPE was received?
We look to progress reports. I’ll review current and interesting progress reporting and data questions in a moment, but for now, it’s important that a uniform message be provided by your school to parents and guardians that Comp Ed is not automatic and is only required in the event that the interference that was COVID-19 closures caused real FAPE loss.
Be ready to explain to parents, guardians, and fellow educators that Comp Ed is not automatic.
3. Perfect your re-entry plan
There is great excitement about a return to normalcy in our schools. But there is also anxiety, uncertainty, and concern about whether educators are prepared to address learners returning after COVID-19.
Schools need to have thought-out, understandable, and meaningful re-entry plans in place for the commencement of the 2021-2022 school year. You need to make sure everyone understands and is prepared to consistently and meaningfully implement your school’s plan. If the plan isn’t ready, use ESY time to get it done.
Teachers and other educators need to understand and buy into re-entry plans. How are these colleagues being prepared (and resourced) to implement the plan? Are you providing professional development targeted at post–COVID-19 learning issues? How can your school use ESY time (and contracted days) to ensure smooth implementation of the re-entry plan?
As discussed, Child Find is particularly important now. Plans need to deliver this message. Be prepared to promptly identify new or changed student needs through appropriate school systems. Re-entry plans ought to remind all – parents, guardians, and educators – of the role of, and differences among, RTI, Section 504, and special education.
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Remember that words matter. Be particular about how progress is documented and how the different medium of COVID-19 service delivery is discussed, and be deliberate in using words like “Comp Ed” and “learning loss.”
Our educational communities experienced extraordinary circumstances on account of COVID-19, but our legal requirements remain ordinary. Special educators should continue to provide required notices, document progress, and follow typical IEP procedures. Educators are not expected to make new or unique determinations regarding so-called COVID-19 learning loss or gaps. Was the IEP implemented? Did the student experience anticipated progress? Ask the usual questions, using the usual tools, with the usual faces at the table. Be wary about using atypical phrases like “Comp Ed” and “learning loss” during IEP team meetings or in IEPs. These considerations are not required and may expose schools to legal claims.
Remember that you are experts. Your words, especially in legal documents like IEPs, count.
2. Offer summer services for all students
Address and remediate COVID-19 learning gaps by providing summer services for all interested students via ARP/ESSERS III federal monies.
I have been bragging for a year about the hard work and industry you showed during the COVID-19 school year to make sure that FAPE was provided and students didn’t miss out. Systemic change in public education often takes years; most of you figured it out in a period of weeks, days, or even hours. Special education and related services, even community-based instruction and behavioral supports, were offered virtually in schools across the country.
Systemic change in public education often takes years; most of you figured it out in a period of weeks, days or even hours.
But we all know that some students with IEPs didn’t receive the services they needed and that the closures, isolation, and general trauma caused by COVID-19 revealed or aggravated mental health concerns for many students. Some of those students may require special education.
This doesn’t mean ESY for all. ESY, similar to Comp Ed, has a specific, limited purpose. ESY is intended to provide a bridge of service, often during the summer, to avoid unreasonable regression and a failure to recoup skills already secured. ESY, in this regard, often involves targeted limited special education and/or related services delivered to hold over that student until implementation of an IEP at the beginning of the next school year.
But that doesn’t mean that additional educational services can’t be offered during a traditional ESY program. For months I have been encouraging educators to consider offering additional supplemental educational services for every student who would participate, particularly in light of the availability of those extra federal monies, during the 2021 summer months.
Make that offer, and closely document the receipt of services and gains seen by students. That documented progress, as discussed above, may be incredibly valuable in defending future claims.
1. Ensure 2020-2021 progress data is complete
I think the most important principle to consider in reducing legal risk during 2021 ESY (as it is at any other time) is that FAPE means progress. Endrew F. v. Douglas Cnty. Sch. Dist. RE-1, 137 S. Ct. 988 (2017). Do you have the data to prove, right now, that real progress was experienced during the 2020-2021 school year?
Public education, regardless of whether we are considering students receiving general or special education, is about learning. Endrew’s definition of FAPE is premised on meaningful individual learning. Did the student receiving special education learn? Regardless of future allegations, parent or guardian concerns, or the strange new virtual medium of IEP implementation, if the student experienced appropriate progress toward curricular and related service goals, the student received FAPE.
Our task in special education litigation is to prove progress. Through the lens of the COVID-19 school year, educators need to ask whether, or how, was progress memorialized or kept?
Do you have the data to prove, right now, that real progress was experienced during the 2020-2021 school year?
Time is of the essence. If they haven’t done it already, it is imperative that during 2021 ESY educators confirm that documentation regarding student progress is in hand and available in the event of litigation or other questions regarding 2020-2021 special education and related services.
The medium of IEP implementation was likely different, via virtual service delivery. Was progress monitored virtually? Was traditional benchmark data collected? Was that progress data timely reviewed and conventionally reported to parents and guardians? Was behavioral data collected?
Roll the tape forward. Picture yourself in front of a hearing officer, administrative judge, or another agency – how do you show IEP implementation and student progress? Schools always need to have immediately available objective and comprehensive progress data. If you don’t know how you would show progress, get working to create that data with teachers and others who implemented services last year before memories fade further, employees move on, or claims are filed.
Especially for students receiving 2021 ESY services, it’s now doable to assess current status against 2020-2021 goals and objectives. That task becomes less doable, less objective, and less helpful from a litigation standpoint as every day passes.
As always, put student need first, and be careful out there.
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