There are a myriad of resources students can lose when they cannot attend school in-person, including things like access to technology that supports their learning, social development, and even food and shelter. For students receiving special education services, the school closures and changes in learning during the pandemic have altered access to these critical programs.  

The U.S. Department of Education reports that seven million, or 14 percent, of public school students receive special education services. These services, such as Individualized Education Plans, speech-language and occupational therapies, and psychological services, are simply not as accessible during the pandemic.      

Diane Southard, a St. Louis County mother of eight, is bracing the brunt of this crisis. Her children normally depend on individualized plans to support their learning. But, as they attend school from home, Southard is in charge of teaching multiple kids, each of whom need one-on-one support. 

When discussing what support schools have provided to accommodate her children during this time, Southard told St. Louis on the Air, “It does not even come close to what services they were receiving in the school environment during that typical pre-COVID time.” 

This poses the question: Should schools allow their students receiving special education services to come back to the classroom? When New York City Public Schools reopened for the second time in November, the first schools to open in the phased approach were schools for students with disabilities. 

In a letter published in the American Journal of Psychiatry, Dr. John Constantino, co-director of the Intellectual and Developmental Disabilities Research Center at Washington University, stressed that children and adults with intellectual and developmental disabilities face major burdens due to the pandemic and the shift to online learning. 

Dr. Constantino urged doctors to prioritize children with intellectual and developmental disabilities with necessary services, such as in-person learning and one-on-one learning, writing, “Families who have watched the progress of their children, starting from March at the start of the pandemic, for those kids who just cannot benefit from virtual learning, they have watched their children’s educational and achievement and even social and communicative progress either stall or go backwards as a function of the pandemic.”

As schools continue to navigate the coronavirus pandemic, students with special education services may continue to experience the negative impacts of remote learning, including inadequate access to their Individualized Education Plans. 

Listen to this segment on St. Louis on the Air here.

Kennedy Hunt, P.C. expects many students who receive special education services will require compensatory services to remediate for the absence of services during school closings caused by COVID-19.  Parents who believe their child is not receiving appropriate services or believes their child needs additional, compensatory services after schools reopen should fill out an online questionnaire or call 314-872-9041 for more information.

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Image courtesy of https://www.ca8.uscourts.gov/

The parents filed a Due Process Complaint alleging St. Louis Public School District violated the Individuals with Disabilities Education Act (“IDEA”), alleging their child’s needs were not met when the school district approved an IEP placing their child at Madison, a school for students with severe emotional and behavioral issues. The school had no experience teaching students with developmental disabilities and had no resources to serve students with autism.

Following a due process hearing, the Administrative Hearing Commission improperly upheld the school district’s educational. The Commission wrongly discounted the testimony of the student’s long-time psychiatrist, who recommended services based on the student’s autism-driven behaviors rather than as a student with a behavioral disorder. The Commission found that the student was not denied a free appropriate public education because of his placement at Madison. The commission also held the parents were not entitled to reimbursement of tuition at Giant Steps, a private school serving students with autism where parents enrolled the student following the school district’s placement decision.

The parents appealed to the district court, which found the student’s placement at Madison was inappropriate, but only for the time when the school wholly lacked sensory resources. The district court denied tuition reimbursement after Madison constructed a sensory room and admitted several other students with autism, even though the parents were not notified of these developments. Parents appealed the district court’s decision to the Eighth Circuit Court of Appeals. In December 2019, Sarah Jane Hunt briefed the parents’ appeal and argued their case before Judges Ralph R. Erickson, Michael J. Melloy, and Jonathan A. Kobes. You can listen to the oral argument here.

The Court of Appeals issued their opinion and order on March 2, 2020. The Court of Appeals noted that the school district’s proposed placement of the student at Madison was not appropriate because it only served students with voluntary control of their behaviors, whereas “one of the hallmarks of autism is that the behavioral issues associated with it are involuntary” and Madison’s Principal testified it was not a place for students with involuntary behavioral issues The Court of Appeals held t the student’s private placement at Giant Steps was appropriate and the parents were entitled to full reimbursement of their tuition payments.

The school district’s petition for rehearing en banc, supported by amici including the National School Boards Association and the Missouri School Boards’ Association, was denied on April 13, 2020. The parents’ petition for reimbursement of attorney’s fees is pending.

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Although it is unclear when students will return to school, the U.S. Department of Education clarified that most students with special needs should still receive special education and related services even while they are at home.

On March 12, 2020, the U.S. Department of Education issued a fact sheet providing guidance on the federal special education law, the Individuals with Disabilities Education Act, or IDEA in light of the COVID-19 pandemic. The following are some of the major takeaways:

• If a school district continues to provide educational opportunities to the general student population during a school closure, such as providing online courses, the school must also ensure that students with disabilities also have equal access to the same opportunities, including the provision of free appropriate public education (FAPE).
• Schools also must ensure that, to the greatest extent possible, each student with a disability can be provided the special education and related services identified in the student’s individualized education program (IEP) developed under the IDEA, or a plan developed under Section 504.
• If a child does not receive services during a closure, a child’s IEP team (or appropriate personnel under Section 504) must make an individualized determination whether and to what extent compensatory services may be needed, consistent with applicable requirements, including to make up for any skills that may have been lost.
• If a child is infected with COVID-19, a school must provide special education and related services to the child while schools remain open.

Based on these guidelines, most children with special needs are still entitled to receive special education and related services – even during the COVID-19 outbreak.

Our firm expects many students who receive special education services will require compensatory services to remediate for the absence of services during school closings caused by COVID-19.  Parents who believe their child is not receiving appropriate services or believes their child needs additional, compensatory services after schools reopen should contact our firm.

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