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Takeaways: Special Education Legal Updates Fall 2021 Webinar

Special Education

What is your biggest legal concern in special education right now? In a recent webinar, John Comegno, Esq. — nationally recognized education law attorney and professor — shared his perspective on some of the most challenging issues facing special education administrators heading into the 2021-22 school year.

You can watch the webinar here, and you can dive into some higher level takeaways right now.

Webinar attendees felt that their biggest special education legal concern right now is…

Social emotional learning (SEL) is critical, even from a legal perspective.

Now more than ever, accommodating the special education learner goes beyond addressing challenges with reading, writing, and arithmetic. There may be more mental health concerns today than issues with academic performance.

Students need to feel safe in order to learn. Now that most teachers and students are physically back in the classroom, teachers again have a close view of how students are performing emotionally. But with that increased visibility comes increased responsibility.

From a legal standpoint, educators need to be asking themselves: Should this student’s emotional difficulties be addressed with an IEP?

Anxiety is a good example. If you suspect a student may be suffering from significant anxiety, notice how that student is functioning when arriving at school or passing you in the halls. Think about what types of accommodations you might be able to provide to enable that student to be more engaged with their teachers and peers.

Counseling need not be provided only through the prescribed frequency and duration of a related service. It need not be provided only through IEP goals and objectives. Counseling should be available for all, when possible. Consider putting increased access to counseling at the top of the list when you are looking at your toolkit to use for re-entering school smartly.

And always be asking the question: How is special education going to address that issue? How is specially designed instruction going to remediate that gap, that “learning loss,” that impact? The answer should be data based and go beyond the fact that special education would be a benefit for that student — because you know it is for many students.



Parent engagement brings in more data. But does that data align with what you’re seeing?

During the virtual and hybrid instruction that occurred as a result of COVID school closures, parents had, and, in many cases, still have, front row seats to instruction like never before. One result of this access is more data, more input, more feedback from parents than educators have ever had before, and that’s wonderful. But when you receive data and feedback from parents, make sure that information is consistent with other IEP team data.

What did last year’s data show you? What functional and performance data can you access to help you consider your Child Find responsibilities? What do the grades say? What about attendance data? Is the teacher in agreement with parent opinion?

COVID impacted and continues to impact students in many ways, but that doesn’t necessarily mean students would thrive with an IEP. It’s not the COVID impact that qualifies a student for an IEP — it’s the need for special education that is going to make that student eligible.



The special education criteria haven’t changed

With so much uncertainty, and even the new diagnosis of “Long COVID” on your radar, it can be easy to become distracted by the functional impact caused by COVID-19 exclusion, mental health issues, and even the simple disengagement of turning cameras off and not doing work.

But let’s remember that those special education eligibility criteria didn’t change. To move forward with the process, teams must have data that shows real academic impact. And while the functional impact on students may be real, IEP teams need to discern why at all times — why is a student eligible for special education? What disability is blocking access to a free appropriate public education (FAPE), and how can special education enable access?

Remember the special education criteria. Remember that the criteria have three prongs:

  • The child must have one or more eligible disabilities
  • The disability must negatively affect their educational performance
  • The disability must require special education and related services

Despite COVID-19, the third prong remains, and it has not changed. You may see a learning gap or a mental health concern when you observe a student. But the final question for eligibility remains: Why is special education needed to address that issue?



Lessons from the trenches

This time of intense challenge and tragedy has brought with it many lessons for schools. Some might not be new but became important reminders. Special education is a program, not a place. With some states trying to avoid virtual instruction entirely, you might be wondering about your students who cannot yet be in the school environment. In some ways, the answer is simple: if virtual instruction can continue to support a student’s learning goals, then great. Virtual instruction it is.

Some gaps go beyond learning. With last year’s absence of socialization and interaction for many students, there may be larger gaps in social-emotional development. With so much concern over learning gaps and missed academic opportunities for students, it’s critical to prioritize students’ engagement with one another, with the learning material, and with educators.

In a poll for live webinar attendees, 97% of respondents shared that COVID-19 virtual and hybrid instruction either aggravated existing mental health issues and/or caused or exposed new ones. With that in mind, here are some action items to take into this year and beyond:

  • Remember the accommodation continuum, and deliberately and patiently exhaust resources in addressing student disability
  • Do your best to tear down silos – service access should not limited and only get in the way of your being able to holistically support students
  • When possible, enable access to counseling and mental health services to all students
Interested in learning more? Watch the full webinar here

John B. Comegno II

John Comegno is Founder and President of the Comegno Law Group, P.C., and is recognized nationally as a leading School Law practitioner, representing public and independent schools, Educational Services Commissions, Special Service School Districts, and third-party education vendors. A nationally-recognized lecturer on School Law who has lectured to thousands of educational professionals across the United States, John regularly presents to conventions, professional groups, associations, public and independent schools, and other audiences