Special Education Rights During Corona

By: Hillary D. Vaillancourt, Esq. The Vaillancourt Law Firm, LLC

During the coronavirus pandemic, there are so many things to worry about. Financial circumstances, staying healthy, and if you are the parent of a child with special needs, how to make sure your child is still making progress in their education.

As any parent of a child with special needs knows, there are no easy answers to special education. And, even when there are clear answers about what your child is entitled to, too often, parents of children with special needs must still spend energy, time, and sometimes money advocating for their child to receive the services to which they are entitled.

In these exceptional times, please know that The Vaillancourt Law Firm is here to help you help your child. Here is where special education rights stand right now. If you need further advice or have questions, please feel free to contact The Vaillancourt Law Firm directly. 

WHAT WERE YOUR CHILD’S SPECIAL EDUCATION RIGHTS BEFORE THE PANDEMIC?

Before the pandemic, all children (whether homeschooled or not) were entitled to a free, appropriate, public education (FAPE). This FAPE must be conducted in the least restrictive environment (LRE), meaning children with special needs should generally be included in the general education setting despite having special needs.

This came about, because historically, children with special needs were excluded from the general classroom. However, it was believed that all children could learn better by integrating the classes.

The two main statutes that were implemented and are still the benchmark by which all special education circumstances are measured today are the Individuals with Disabilities in Education Act (IDEA) and the Americans with Disabilities Act (ADA). Each of these statutes has language guaranteeing a child with special needs the right to a FAPE.

The statutes also covers how children with special needs may access the services necessary for them to receive a FAPE. Under the IDEA, children with special needs may have an Individualized Education Plan (IEP) to address what the child’s needs are and what services will be provided to meet those needs.

Under the ADA, children with special needs may have a 504 Plan. It is similar in that it addresses what the child’s needs are and what services are necessary to meet those needs, but differs from an IEP in a few key ways.

For example, a 504 Plan does not require parental input, progress monitoring, evaluations from the school, or specific, measurable goals.

HOW HAS THE CORONAVIRUS PANDEMIC CHANGED YOUR CHILD’S SPECIAL EDUCATION RIGHTS?

Whether your child is receiving special education services under IDEA or ADA, it is important to note that at this time, neither of those statutes has been waived during the coronavirus pandemic.

This means that schools must still provide a FAPE to all students even though those schools are shuttered temporarily.

How that FAPE looks, however, may have more leeway now than what it was before schools were closed. Schools that prior to the pandemic would have to provide in-person services, are not necessarily required to do so now given the stay-home orders issued in many states. There may be some exceptions, and it’s important to look at each individual state’s stay-home orders and the exceptions to those orders.

However, the goals of students in special education must continue to be met.

WHAT IS THE FUTURE OF YOUR CHILD’S SPECIAL EDUCATION RIGHTS?

Admittedly, special education is in a tough spot for both families and schools. For many students, in-person services from aids and specialists is necessary for the student to make any real, measurable progress. However, with social distancing and stay-home orders, this has become difficult if not impossible in some states.

Yet, what are families supposed to do? Students still need services. It is critical now more than ever to continue advocating for your child.

This may mean joining social media support groups to share ideas, ask questions, and reach out for help.

This may mean consulting an attorney to intervene with the school.

This may mean lobbying government officials to create exceptions in the stay-home orders for service-providers to students with special needs.

In the recent coronavirus bill passed by Congress, there is a provision that allows Education Secretary, Betsy DeVos, the opportunity to request congressional approval to waive provisions in the IDEA. She has 30 days from the passage of the coronavirus bill to make recommendations about waiving special education rights.

It is nearly impossible to know what our students will be facing, but there is still work that we can do to protect them and their education.

If you are concerned about your child’s education during the coronavirus pandemic, please contact us today for a free consultation. We are here to help.